Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. In the course of proceedings between Emir Gül and the Regierungspräsident Düsseldorf, the Verwaltungsgericht Gelsenkirchen has asked the Court to rule on the interpretation of a number of provisions of Regulation No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Official Journal, English Special Edition 1968 (II), p. 475). The national court wishes to know in particular whether a national of a nonmember country may claim to be entitled to authorization to practise medicine in the Member State in which he resides with his wife, an employed person who is a national of another Member State.

2. Mr Gül is a Cypriot national of Turkish origin; since 1971 he has been married to a British national who has the right of abode in the United Kingdom under the British Nationality Act 1971. The three children of the marriage are also of British nationality. Mr Gill obtained a degree in medicine from the University of Istanbul, and on 1 October 1977 he obtained temporary authorization to practise medicine in the Federal Republic of Germany in order to permit him to specialize in anaesthesiology. Before that authorization was issued, he formally undertook to return to his country of origin or, should that be impossible, to go to another developing country after completing or discontinuing his training as a specialist.

3. For the purposes of a better understanding of the questions referred it is appropriate to undertake a summary review of the German law regarding access to the medical profession and the relevant Community law. The German rules on the matter are contained in the Bundesärzteordnung. Under Paragraph 2 (1) any person wishing to practise medicine must possess a licence. However, only three categories of persons, if they fulfil certain conditions, are entitled to such a licence: German nationals (within the meaning of Article 116 of the Grundgesetz), nationals of other Member States of the Community and stateless persons. Nationals of nonmember countries may obtain a licence only in particular circumstances (for example, in the interests of public health: Paragraph 3 (3))

4. Let us turn, then, to the questions referred to the Court. In the first question the national court asks whether the right granted by the provision just cited to a national of a nonmember country entails the right to be authorized to pursue an occupation, where under the law of a Member State that occupation may only be pursued by persons holding an authorization granted by the authorities. The reply depends on the interpretation to be given to the words shall have the right to take up any activity as an employed person in Article 11. It is necessary in particular to determine whether the distinction discerned by the Regierungspräsident between access to the general labour market and access to employment requiring specific authorization is justified.

5. The second question concerns the relationship between Article 11 and the first indent of Article 3 (1) of Regulation No 1612/68. In particular, the national court wishes to know whether a national of a nonmember country entitled to take up employment under the first provision may also rely on the second, according to which, as I have already pointed out, provisions laid down by law, regulation or administrative action or administrative practices of a Member State shall not apply where they limit [access to employment] or subject it to conditions not applicable in respect of their own nationals. I think the reply to that question must be in the affirmative. The plaintiff in the main proceedings and the Commission also propose an affirmative reply. Although they concur in the result, their arguments differ, however, as to the basis for it.

6. The third question is designed to ascertain whether a national of a nonmember country entitled to take up employment under Article 11 has the right under Article 3 (1) to be treated in the same way as a national of the Member State concerned with regard to the taking up and pursuit of an occupation.

7. In the fourth question the Verwaltungsgericht asks how far it is necessary to take the examination of national law in order to determine whether the rules regarding admission to an occupation discriminate against foreigners. In the order of that court it is pointed out that in spite of its apparent neutrality Paragraph 10 of the Bundesärzteordnung is a means of control specifically intended to work to the advantage of doctors who are German nationals.

8. The fifth question is intended to ascertain whether the right to be treated in the same way as a national of the Member State concerned applies even where the national of a nonmember country entitled to take up employment under Article 11 has only other evidence of formal qualifications as referred to in Article 1 (5) and Article 6 of Council Directive 75/363 of 16 June 1975.

9. On the basis of the foregoing considerations I propose that the Court give the following replies to the questions referred to it by the order of 28 May 1985 of the Seventh Chamber of the Verwaltungsgericht Gelsenkirchen in the proceedings pending before it between Emir Gül and the Regierungspräsident Düsseldorf:

1 Translated from the Italian.