OPINION OF ADVOCATE GENERAL

My Lords,

This is an application by the Commission for a declaration that the Federal Republic of Germany has failed to implement two Directives: (a) Council Directive No 77/452 of 27 June 1977 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of nurses responsible for general care, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1977, L 176, p. 1) (‘the recognition directive’) and (b) Council Directive No 77/453, also of 27 June 1977, concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of nurses responsible for general care (OJ 1977, L 176, p. 8) (‘the coordination directive’). These directives were notified to the Federal Republic of Germany on 29 June 1977 and, under the terms of Article 19 (1) of the former and Article 4 (1) of the latter, they should have been implemented by 29 June 1979.

On 2 July 1980 the Commission wrote to the Government of the Federal Republic pointing out that it had not yet taken any measures to implement the two directives. The government was invited to submit its observations, which it did by a letter of 30 July 1980. This letter states that a bill was then before the German Parliament, the provisions of which were designed to implement the recognition directive in German domestic law. It was stated that Article 6 (1) of the bill would enable the Federal Government to adopt regulations for the implementation of the coordination directive. The letter assumes and indeed admits that implementing legislation was necessary in Germany. Nevertheless the letter went on to assert that in substance the two directives were already being applied in practice.

On 25 November 1981 the Commission delivered a reasoned opinion under the first paragraph of Article 169 of the EEC Treaty in which it noted that Germany had still not taken the steps necessary to implement the two directives in its internal law and gave it two months to do so. On 13 April 1982 the Federal Republic informed the Commission that it was not prepared to adopt a law simply implementing the two directives but had chosen to implement them as part of a much more far-reaching reform of the law in the whole nursing sector; the delay in implementing the directives, due to the difficulties of getting this legislation through Parliament, could be justified by the fact that the directives were already being fully applied de facto. On 6 September 1983 and 30 November 1983 the Federal Republic wrote to the Commission with further news of the progress of the legislation in question, on each occasion using language which implied an admission that implementing legislation was necessary.

Finally, on 20 January 1984, the Commission made an application to the Court seeking a declaration that by failing to adopt within the prescribed period the measures needed to implement the two directives, the Federal Republic of Germany had failed to fulfil its obligations under the EEC Treaty, except in so far as it had provided the information required under Article 17 of the recognition directive. The Commission also asked for costs.

In its defence the Federal Republic admits that it deliberately delayed implementing the two directives in order to integrate them in the new legislation fundamentally reorganizing the rules for the nursing profession. It does not, however, base its defence on the imminence of the adoption of implementing legislation. Its defence is that the existing provisions of German law as applied in practice already fully implement the requirements of the directives and that no implementation measures are required.

Two main grounds are relied on to support this assertion: first, as regards the recognition directive it is said that Article 2 of the German nursing law of 1965, as interpreted and applied by the German authorities, fully complies with the requirements of the directive. Article 2 of that law specifies 2 categories of persons who may be authorized to practise as nurses: (1) those who have followed the German training and passed the German examination stipulated in the law, and (2) German nationals and Stateless persons who have received another form of education recognized as equivalent thereto. ‘The authorization can be granted to other persons when these conditions are fulfilled’ (Article 2 (2)). It is this succinct provision which, it is alleged, is interpreted and applied by the German administrative authorities in such a way as to give full effect to the directive's requirements as to the recognition of diplomas. To answer the point that mere administrative practices, which by their nature can be changed as and when the authorities please, cannot be regarded as a proper fulfilment of a Member State's obligation to implement Community directives (as stated by the Court in Case 102/79 Belgium [1980] ECR 1473 at p. 1486, Case 96/81 Netherlands [1982] ECR 1791 at pp. 1804-5 and Case 145/82 Italy [1983] ECR 711 at p. 718) the Federal Republic argues that as a matter of German law this fixed practice binds the administrative authorities and creates rights which individuals can invoke before the courts.

Secondly, as regards the coordination directive the Federal Republic avers that it has signed a European Agreement on the instruction and education of nurses dated 25 October 1967, whose provisions correspond to those of the directive, and transformed it into domestic law by a law dated 13 June 1972, so that transposition of the coordination directive into German domestic law is no longer required.

In its reply the Commission observes that the Federal Republic has changed its position from admitting that transposition was needed to asserting that no transposition is needed. It denies that adequate measures have been taken to implement the directives. As regards the recognition directive, Article 2 (2) of the German Law of 1965 contains no provision corresponding to the specific object of the directive. The specific guarantees required have not been enacted into German law, and even supposing the administration to be bound by its own practice this does not replace a formal amendment of statutory provisions which differ significantly from those of the directive. As regards the coordination directive, the Commission points out that Germany does not deny that its regulations dated 2 August 1966 on education and examinations fall short of the requirements of the directive. On the contrary, they do fall short in a number of respects including training in geriatrics, psychiatry and home care; the practice of teaching nurses in Germany also falls short of the requirements of the directive. The European Agreement of 1967, relied on by the German Government, was only ratified by it and never transformed into domestic law: it binds the State but creates no individual rights. Therefore the ratifying law dated 13 June 1972 provides no guarantee of the implementation of the directive. In any event the provisions of the Agreement differ from those of the directive: it falls short of the requirements of the directive as regards training in home care, radiology, dietetics and pharmacology.

In the rejoinder the Federal Republic asserts that it is not bound by admissions made in correspondence prior to the litigation. Nevertheless, as regards the recognition directive, it speaks of a two-stage implementation: the Objective legal situation' corresponding to the requirements of the directive already exists in practice and is to be followed by ‘purely formal complementary declaratory measures’, i.e. the legislation. Germany says that the Commission does not deny that its administrative practice complies with the recognition directive. This administrative practice is an adequate implementation of the directive because it confers legally enforceable rights on individuals, and other Community nationals are informed of these rights by the information centres and bodies which have been notified to the Commission and the other Member States under Articles 15 and 17 of the directive. As regards the coordination directive, Germany says that any divergences between the European Agreement of 1967 and the directive are insignificant as regards the application of the law in the Federal Republic and that since the end of June 1979 at the latest the Federal Government has fully complied with the requirements of that Agreement. On the other hand, it does not deny the Commission's allegation that its ratifying law did not specifically transform the provisions of the Agreement into domestic law and it falls back on asserting that it would no longer be lawful for the German authorities to diverge from the requirements of the Agreement as they have bound themselves by their fixed practice.

At the hearing the German Government urged the Court to consider whether, as a matter of fact, existing German arrangements achieve the objects set out in the two directives. If it were found that these objects were achieved in practice, it was submitted, it would be excessively formalistic to insist that this be done by way of legislation rather than by administrative practice (or possibly administrative practice in conjunction with prior legislation, directly applicable Community law and unwritten basic principles).

According to the third paragraph of Article 189 of the Treaty, ‘a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’. It follows that a Member State is not obliged to adopt legislation which follows the terms of the directive in detail or, still less, verbatim. Where a Member State adopts legislation, it is free to set it out as it sees fit, so long as the result sought by the directive is thereby attained, as the Court held at paragraphs 9 and 10 of its decision in Case 163/82 Commission v Italy [1983] ECR 3273 at pp. 3286-3287. That case, however, concerned legislation which had been adopted by a Member State, not an administrative practice.

The Court has, however, established in its case law that a mere administrative practice is not an adequate implementation of a directive (e.g. Case 145/82 Commission v Italy [1983] ECR 711 at p. 718: ‘mere administrative practices, which by their nature may be altered at the whim of the authorities and lack the appropriate publicity, cannot be regarded as a valid fulfilment of the obligation imposed by Article 189 of the Treaty’). The German Government seeks to avoid the application of this rule by arguing that the administrative practices in question in the present case may not be altered ‘at the whim of the authorities’ but on the contrary are binding on the administrative authorities in such a way as to provide individuals with legally enforceable rights.

This concept, known in German as the ‘Selbstverbindung der Verwaltung’ (the self-binding of the administration) was discussed by both parties at the hearing. It was common ground that it does not mean that, once the administration has adopted a settled practice (e.g. as regards the interpretation of a legislative provision), the administration can never change that practice. On the contrary, the German Government admitted that the Administration can depart from its previous practice if there is objective reason to do so. The German Government did not deny the Commission's assertion that the concept in question means only that the administration cannot act in an arbitrary, discriminatory way in individual cases, but does not exclude a change in overall policy. Since the Federal Republic has admitted that the administration can, albeit under certain conditions, depart from its own practice notwithstanding this concept, it has failed to establish that the particular characteristics of German administrative law make administrative practice an adequate means of implementing a directive. Even if the practice followed at a given moment may conform to the aims of a directive, the defect inherent in administrative practice remains in the sense that it may be changed, without the intervention of the legislator, at some future time.

Furthermore, the Commission asserted and the Federal Republic did not deny that the ‘self-binding of the administration’ could only operate where an individual citizen had a legal claim, whereas the two directives contain a number of provisions which require measures to be taken by the State independently of individual claims, for instance regarding the syllabus for the teaching of nurses. Thus, even if German administrative practice had the fixed quality claimed for it, it appears that in any event it would apply only to certain of the matters covered by the directives, but not all of them.

I conclude that even if the changing of administrative practices is subject to certain restrictions in German law, it has not been established that they are thereby given a sufficient degree of certainty to be regarded as a proper fulfilment of the obligation laid down in Article 189 regarding the implementation of directives.

In any event, a second condition has to be fulfilled in regard to the implementation of directives, and that is publicity. There are two reasons for this requirement: (1) to enable the Community citizen to know his rights and have at his disposal a text on which he can rely simply and cheaply; (2) to ensure sufficient transparency to enable the Commission to check effectively whether a directive has been implemented. It is clear that this condition is not fulfilled in the present case.

This means that, whatever it may consist of, Germany cannot rely on its administrative practice as a means of implementing the directive.

It is necessary therefore to look at the existing legislation. It is admitted and it is obvious that this is not adequate to implement the recognition directive. As regards the coordination directive, (1) it is admitted that the existing German nursing law and regulations fall short of what is required by the directive, and (2) regardless of whether or not the European Agreement of 25 October 1967 differs from the directive it appears that the German Law of 13 June 1972 merely ratifies it without incorporating it into the internal legal order so as to give rights to individuals. It follows that the Federal Republic has not fulfilled its obligation to implement the two directives by way of its legislation either.

Accordingly, I am of the opinion that the Commission is entitled to the declaration sought and that the Federal Republic should pay the Commission's costs.