OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

My Lords,

This is an application by the Commission under Article 169 of the EEC Treaty for a declaration that the Republic of Italy has failed to adopt, within the time prescribed, measures which are necessary to implement two Council directives. The first is Directive No 78/1026 and the second is No 78/1027, both of 18 December 1978 (OJ 1978, L 362/1 and 7).

The first of those directives lays down provisions for the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine. The second provides for the coordination of provisions in respect of the activities of veterinary surgeons. Each directive required that it should be implemented within two years of notification, and Member States were required to inform the Commission of this forthwith thereafter and to communicate to the Commission the texts of the main provisions which were adopted.

The directives, it is accepted, were notified on 20 December 1978 so that the period for compliance ended on 20 December 1980. It is common ground that the Italian Government did not inform the Commission of the implementation of the directives during this period.

The two directives have to be considered separately. The Italian Government does not contest that it has failed to adopt the measures necessary to implement Directive No 78/1026. The Court has been told that a bill to implement that directive was presented to parliament in 1982 but it was not enacted as law before parliament was dissolved, and it has become necessary to introduce a new bill. That has not yet become law, although the Court is told it is hoped that it will be enacted in the near future. It seems to me that, the procedural steps required by Article 169 having been carried out, the Commission's application in regard to Directive No 78/1026 should be granted.

As to the second directive, the Commission had been given the impression by the Italian Government that legislation was also necessary to implement it and that the legislation would be included in a bill similarly to be presented to parliament in 1982.

However, in the defence to these proceedings, the Italian Government maintained for the first time that the directive was already fully implemented in Italian law pursuant to Decree No 987, of 23 October 1969 (GURI of 2. 1. 1970, No 1, p. 2). Accordingly, the Italian Government asked that this application, in so far as it concerns Directive No 78/1027, should be dismissed.

The Commission accepts that the directive is implemented substantially by the Italian decree but takes the view that the decree does not completely carry out the requirements of the directive. It seems to me that when a contention is raised in the defence for the first time that a measure has been implemented, it is open to the Commission, in proceedings claiming that the whole directive has not been implemented, to ask the Court to rule that a directive has not been implemented in part.

Directive No 78/1027 is intended to coordinate the professional training of veterinary surgeons. It thus deals with a matter which is a vital precondition to the mutual recognition throughout the Community of national diplomas. The preamble states that “the comparable nature of training courses in the Member States enables coordination in this field to be confined to the requirement that minimum standards be observed, which then leaves the Member States freedom of organization as regards instruction”.

Article 1 (1) of the directive obliges the Member States to require that persons wishing to take up and pursue the profession of veterinary surgeon shall hold a diploma or certificate which guarantees that during his complete training the person concerned has acquired adequate knowledge of certain specified matters. It seems to me that the sole question in this case is whether the Republic of Italy has required persons to hold a certificate which guarantees that during the training period that knowledge has been acquired.

The second paragraph of Article 2 provides that the veterinary training which is envisaged shall comprise, in all, at least five years' theoretical and practical fulltime instruction given in a university or other institution, and shall include at least the subjects listed in the annex. The annex, which is headed “Study Programme for Veterinary Surgeons”, lists 38 subjects divided into two categories: first, basic subjects and then specific subjects. It is perhaps relevant to have regard to the note in the annex to the effect that “the programme of studies leading to the diploma, certificate or other evidence of formal qualifications in veterinary medicine shall include at least the subjects listed below. Instruction in one or more of these subjects may be given as part of, or in association with, other courses”.

The Italian Decree of 1969 sets out the programme of studies for acquiring a degree or diploma in veterinary medicine. The subjects covered by the programme are divided into three categories. There is obligatory instruction in five basic subjects and in 39 specific veterinary subjects. In addition, there is a list of 23 further subjects, of which the student is required to choose three.

The Commission takes the view that the decree does not implement the directive properly because two of the subjects in the directive are not included in the decree, the Commission having today abandoned its contention that a third subject did not fall within the list. Those two subjects which are to be found in the annex to the directive, are: “Food hygiene and technology” and “Animal ethology and protection”.

The Commission contends that, whereas these are clearly distinct subjects in the directive, the decree does not mention them specifically. It is said that, although parts of the subjects in the annex are included under other headings, there is no clear-cut subject which covers the whole ground. Moreover, the Commission contends that the fact that some of these subjects in the decree are optional subjects clearly means that the student is not obliged to study them.

I do not consider that compliance with the directive necessarily requires that the subjects referred to in Article 1 and in the annex, should be specified under the same names. I would also accept that the subjects specified may be divided into different parts under the discretion which is given to Member States in “the freedom of organization as regards instruction”. It is, however, in my view, essential, to comply with the directive, that each subject listed in the annex, as understood in contemporary veterinary medicine, should be fully taught. Such compliance is clearly necessary if diplomas are to be recognized throughout the Community, and it is not enough that only parts of a subject should be taught.

The first of the two subjects which are in issue is “Food hygiene and technology”. That, it seems to me, has to be read in the light of Article 1 (1) (f) as incorporating adequate knowledge of the hygiene and technology involved in the production, manufacture and the putting into circulation of animal foodstuffs or foodstuffs of animal origin intended for consumption. It is suggested that the decree complies sufficiently in that in the 18th group there is to be found “The inspection and control of foodstuffs of animal origin”. That does not seem to me to go as far as the complete subject which is specified in the annex to the directive.

It is clear that in the optional subjects there are a number of items such as “Milk hygiene” and “Animal food technology” which appear to fall within the broader category which is referred to in the annex to the directive. Since, however, these are optional subjects, there is no guarantee that they will be studied as the directive requires that they should be.

Secondly, the Commission relies upon the subject of “Animal ethology and protection”. It is suggested by the Italian Government that that is covered by the fifth group in the compulsory subjects, which includes: “Hygiene”, “the external aspects of animals”, “Ethnology”, “Genetics” and “The rearing of animals”. It seems to me quite clear that animal ethology, which I understand to be animal behaviour in the animal's environment, and the protection of animals are quite different from ethnology and from the external characteristics or aspects of the animal. It is not suggested that this subject is adequately covered under other headings of the decree.

Accordingly, in my view, the Commission has made out its case and there should be a declaration to the effect that the Italian Government has failed to implement, firstly Directive No 78/1026 and secondly has failed in part to comply with Directive No 78/1027 to the extent, albeit limited, that “Food hygiene and technology” and “Animal ethology and protection” are not fully included in the subjects which are required to be taught under the decree as they ought to be pursuant to Article 1 of the directive.

It seems to me that in the circumstances, the Commission having succeeded, albeit in part, and the defence that there had been compliance having been introduced at a late stage, it is right that the costs of the Commission should be borne by the Italian Government.