Avis juridique important

Judgment of the Court of 25 July 1991. - Commission of the European Communities v Italian Republic. - Articles 48, 52 and 59 of the EEC Treaty - Recognition restricted to Italian nationals of formal occupational qualifications obtained abroad - Pursuit of occupation of health-care auxiliaries. - Case C-58/90. European Court reports 1991 Page I-04193

Summary Parties Grounds Decision on costs Operative part

++++

Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Workers - Principle of non-discrimination - Regulated occupations - Auxiliary occupations in the field of health care - Recognition of the equivalence of foreign diplomas reserved to nationals if no reciprocity - Not permissible

(EEC Treaty, Arts 48, 52 and 59)

The general principle prohibiting discrimination on grounds of nationality, which is laid down by Articles 48, 52 and 59 of the Treaty in the particular spheres which they govern, means that freedom of movement for workers, freedom of establishment and freedom to supply services include access to activities of employed or self-employed persons on conditions defined by the legislation of the host Member State for its own nationals.

A Member State which, as regards the recognition of the equivalence of diplomas obtained abroad with national diplomas giving access to certain auxiliary occupations in the field of health care, discriminates between its nationals and the nationals of the other Member States, with recognition for the latter being subject to the existence of a reciprocity agreement which is not required in the case of the former, fails to fulfil its obligations under the abovementioned provisions.

In Case C-58/90,

Commission of the European Communities, represented by its Legal Adviser, Giuliano Marenco, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, a member of its Legal Department, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Luigi Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5, rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, by restricting to Italian nationals the possibility of obtaining recognition in Italy of foreign formal qualifications entitling holders to pursue occupations as health-case auxiliaries, the Italian Republic has failed to fulfil its obligations under Articles 48, 52 and 59 of the Treaty,

THE COURT,

composed of: O. Due, President, T.F. O' Higgins, J.C. Moitinho de Almeida, and G.C. Rodríguez Iglesias, (Presidents of Chambers), Sir Gordon Slynn, R. Joliet, F.A. Schockweiler, F. Grévisse and M. Zuleeg, Judges,

Advocate General: M. Darmon,

Registrar: D. Louterman, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument presented by the Commission at the hearing on 2 July 1991,

after hearing the Opinion of the Advocate General at the sitting on the same day,

gives the following

Judgment

1 By an application lodged at the Court Registry on 8 March 1990, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by restricting to Italian nationals the possibility of obtaining recognition in Italy of foreign formal qualifications entitling their holders to pursue occupations as health-care auxiliaries, the Italian Government has failed to fulfil its obligations under Articles 48, 52 and 59 of the EEC Treaty.

2 The national provisions called into question are contained in Italian Law No 752 of 8 November 1984 (GURI No 311 of 12 November 1984, p. 9427), supplemented by an implementing decree of 16 July 1986 (GURI No 302 of 31 December 1986, p. 24).

3 Following a complaint from a Belgian national, who had sought without success to obtain recognition in Italy of a diploma in osteopathy and physiotherapy obtained in Belgium and in the United Kingdom, and following a petition sent to the European Parliament, the Commission requested the Italian Government, by letter of 19 September 1988, in accordance with the procedure laid down in Article 169 of the EEC Treaty, to submit its observations. In the absence of any reply, the Commission issued a reasoned opinion on 15 June 1989, by which it requested the Italian Republic to take the necessary measures within a period of two months. Still having received no reply, the Commission brought this action.

4 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

5 In support of its application, the Commission puts forward two arguments. In the first place, it refers to the consistent case-law of the Court according to which discrimination based on nationality, such as that introduced by the Italian legislation at issue in respect of access to occupational activities pursued by workers (Article 48 of the EEC Treaty) or self-employed persons (Article 52 of the EEC Treaty) and as the provision of services (Article 59 of the EEC Treaty), constitutes an obstacle to the exercise of the freedoms guaranteed by the Treaty.

6 In the second place, the Commission argues that the Italian decree of 16 July 1986 wrongly subjects the recognition of foreign diplomas to the existence of a reciprocal agreement with the State concerned. The Commission does not dispute that in the absence of harmonization of the conditions of access to a particular occupation, Member States are entitled to lay down the knowledge and qualifications needed in order to pursue it and to require the production of the relevant diploma. It believes, however, that the host Member State may not require a national of another Member State who holds a diploma issued by another Member State to hold the diploma laid down for that purpose in the host country without taking into account the knowledge and qualifications acquired as evidenced by a diploma issued in that other Member State (judgment in Case 222/86 Heylens [1987] ECR 4097).

7 With reference to the complaint sent to the Commission by the Belgian national who had been refused recognition of his diplomas in Italy, the Italian Government points out that the Regional Administrative Court, Lazio, annulled the ministerial decision at issue on the ground that it was contrary to the provisions of Community law. It adds that the effects of its judgment will extend the future application of the Law to analogous cases, so that any discrimination contrary to Articles 48, 52 or 59 of the Treaty will be ruled out in future.

8 It is common ground that the national provisions called in question by the Commission are incompatible with Articles 48, 52 and 59 of the Treaty.

9 It should be pointed out, first of all, that the general principle prohibiting discrimination on grounds of nationality, which is laid down by Articles 48, 52 and 59 of the Treaty in the particular spheres which they govern, means that freedom of movement for workers, freedom of establishment and freedom to supply services include access to activities of employed or self-employed persons on conditions defined by the legislation of the host Member State for its own nationals (judgments in Case 167/73 Commission v France [1974] ECR 359, Case 2/74 Reyners [1974] 631 and Case 33/74 Van Binsbergen [1974] ECR 1299).

10 It must next be emphasized that, as the Court has consistently held, a Member State which subjects access to certain occupations by nationals of other Member States to a condition of reciprocity fails to fulfil its obligations under Articles 48, 52 and 59 of the Treaty (judgment in Case 168/85 Commission v Italy [1986] ECR 2945).

11 Moreover, the equivalence of a diploma obtained in another Member State must be assessed with sole regard to the degree of knowledge and qualifications which that diploma, taking into account the nature and duration of the studies and practical training certified to have been completed, allows to be presumed on the part of the holder (judgment in Case 168/85, at paragraph 13).

12 Finally, the Italian Republic cannot escape its obligation to adapt its national legislation to the requirements of the Treaty by relying on a certain administrative or judicial practice, or by claiming that the nationals of the other Member States will in future receive the same treatment as Italian nationals. The discriminatory provisions contained in the Law of 8 November 1984 maintain a state of uncertainty as to the possibility of relying on Community law and, as a result, an ambiguous state of affairs for the persons concerned.

13 It must therefore be declared that by maintaining in force provisions restricting to Italian nationals the possibility of obtaining recognition in Italy of foreign formal qualifications which entitle holders to pursue occupations as health-care auxiliaries, the Italian Republic has failed to fulfil its obligations under Articles 48, 52 and 59 of the EEC Treaty.

Costs

14 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. As the Italian Republic has been unsuccessful in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that by maintaining in force provisions restricting to Italian nationals the possibility of obtaining recognition in Italy of foreign qualifications which entitle holders to pursue occupations as health-care auxiliaries, the Italian Republic has failed to fulfil its obligations under Articles 48, 52 and 59 of the EEC Treaty;

2. Orders the Italian Republic to pay the costs.