Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. These proceedings, which were initiated by a reference for a preliminary ruling made by the Cour d'Appel [Court of Appeal], Colmar, represent the sequel to Case No 136/78 ([1979] ECR 437), to which I shall hereinafter refer as Auer I. It raises questions of interpretation of Articles 52 and 57 of the EEC Treaty concerning the freedom of establishment, in respect of two Council directives: No 78/1026/EEC of 18 December 1978, concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine (Official Journal 1978, L 362, p. 1) and No 78/1027/EEC, which deals with the same matters and concerns the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons (Official Journal 1978, L 362, p. 7).

2. The facts which gave rise to the action are not in dispute. For the greater part they are set out in the judgment in Auer I and I shall summarize them as follows. Vincent Auer, who was originally of Austrian nationality, studied veterinary medicine in Vienna, Lyon and finally in Parma, where, in 1956, he obtained a diploma of laurea [doctor]. In 1958 he took up residence in France and practised his profession there, first as assistant to a French veterinary surgeon and subsequently on his own account. He became a naturalized French citizen in 1961, and on several occasions applied for an authorization to engage in the medical and surgical treatment of animals within the meaning of Ministerial Decree No 62-1481 of 27 November 1962. According to that decree, authorization may be granted to veterinary surgeons of foreign origin who have acquired French nationality and who are in possession of a diploma in veterinary medicine issued abroad and recognized as equivalent to the French diploma by the competent examining committee. However, in Dr Auer's case, the committee refused to recognize the equivalence of his diploma although it is accepted by certain academic institutions in France. His applications were therefore rejected and, on more than one occasion, he was prosecuted for unlawfully practising the profession.

3. I shall come to my views on that question shortly. However, I feel that I must comment on the observations made by the national court in relation to Dr Auer's origins. I shall do so in the words which this Court employed in Auer I; there is no provision of the Treaty, the Court stated, which makes it possible to treat nationals of a Member State differently according to the time at which or the manner in which they acquired the nationality of that State (paragraph 28 of the decision). Therefore, a person who has become a national of a Member State must be accorded the same treatment as one who has always been a national. Dr Auer is entitled to the treatment to which he would be entitled if he had been a French national from birth.

4. Let us now return to the point at issue. Stripped of its inessentials, the problem which the Court has to resolve is the following: Can a citizen of a Member State, who has obtained in another Member State one of the qualifications listed in Directive No 78/1026, automatically practise veterinary medicine in his own State?

5. For those reasons, I am convinced that Directive No 78/1026 applies to the case of Dr Auer. It is therefore necessary to establish whether it has direct effect, in other words, whether a person who finds himself in the position of Auer may rely on it before the national court.

6. The society and the union of French veterinary surgeons do not accept that conclusion. According to them, the requirement of enrolment on the register does not in itself amount to an infringement of Articles 52 and 57 of the EEC Treaty. Intended as it is to regulate entry into the profession and ensure respect for the ethics thereof, it is justified in the general interest and satisfies requirements of public policy.

7. Once that conclusion is reached, the debate between the parties as to the effects of Article 4 of Directive No 78/1026 becomes irrelevant. It is well known that that provision recognizes the rights acquired by the nationals of a Member State who possess qualifications which do not satisfy the minimum training standards to which I have already referred many times (Article 1 of Directive No 78/1027). It is clear that that provision has no part to play in this case. Indeed, its applicability would be excluded for reasons which are all too obvious should the Court accept the solution which I have suggested. However it would also be excluded if the Court were not to accept that solution, because the benefit under that provision is made subject to condition of at least three years' lawful practice of veterinary medicine, and thus to a requirement which a person in Dr Auer's position could not claim to have satisfied.

8. I have dealt with these arguments for the sake of completeness. However, as is clear, they represent developments of a view which I do not share. I take the opposite view. I therefore propose that the Court reply to the question submitted to it for a preliminary ruling by the Cour d'Appel, Colmar by judgment of 16 December 1982, in the course of the criminal proceedings brought against Dr Auer, as follows :

1 Translated from the Italian.