How long can a dental approval procedure for foreign dentists take? This is where opinions differ.
The approval procedure in Germany should not last longer than four months. That’s what the law wants. However, the period only begins with the date on which all documents are available to the authorities. Does this also include the expert opinion as part of the equivalence test?
Equivalence assessment – Regierung von Oberbayern
According to the Government of Upper Bavaria, the deadline does not begin until the expert’s report is available. Specifically, the Government of Upper Bavaria informed me: „Regarding the necessary documents pursuant to § 59 Paragraph 5 Sentence 1 ZÄPrO in conjunction with § 2 paragraph 6 number 6 ZHG also counts the expert opinion“.
The authority has to decide on the application according to § 2 paragraph 1 ZHG at short notice, at the latest four months „after receipt of the documents and certificates required according to § 84 paragraph 1 or paragraph 3 ZApprO“, § 86 paragraph 1, 2 ZApprO. Which documents are to be attached to the application results from § 2 Abs. 6 ZHG and § 84 Abs. 1 und 3 ZApprO. However, the ZApprO refers back to the ZHG in this respect. The documents are therefore essentially determined in accordance with § 2 Para. 6 ZHG. The number 6 is relevant there. § 2 para. 6 sentence 1 no. 6 ZHG states:
„If an applicant applies for a licence to practise dentistry on the basis of training completed outside the scope of this Act, the following documents and certificates must be submitted: (…)
6 (…) additional evidence in order to determine whether the training is substantially different from the training regulated in this Act and in the statutory order in accordance with § 3 (1)“.
But what additional evidence should these be?
§ Section 2 (6) of the ZHG has been in force since December 2007. It was introduced by Article 9 amending the Act on the Practice of Dentistry in the Act Implementing Directive 2005/36/EC. Unfortunately, the explanatory memorandum does not provide any further answers.
Unfortunately, the commentary literature is not very helpful either. Nomos-BR/Haage ZahnheilkG, 2nd edition 2017, ZahnheilkG § 2 Rn. 43 merely states so:
„According to sentence 1 no. 6, evidence of the existence of significant differences from domestic education must also be submitted for the examination, so that it can be determined whether and which differences exist in order to be able to organise a necessary aptitude test on this basis.“
An additional proof can be for example a curriculum issued to the applicant. The expert opinion, on the other hand, is – at least according to my modest legal opinion – not evidence within the meaning of § 2 Para. 6 Sentence 1 No. 6 ZHG. Because on the basis the proofs the authority is to be put only into the position to determine the equivalence. The law does not require the evidence of equivalence by the applicant, but only the evidence required for the examination and thus also no private expert opinion. Private expert opinions of the parties involved or their authorised representatives are not expert opinions in the sense of § 26 VwVfG, since they are not initiated by the authority, according to Ritgen, in Knack / Henneke: VwVfG, 10th edition 2014 marginal 50 mwN. 52 mwN.
The determination is therefore ultimately the responsibility of the authority which has to make this determination within the time limit. If the authority requires external expertise for the determination, this must be obtained within the time limit. Experts are persons who provide the authority with specialist knowledge which is necessary for the decision but is not available at the authority itself. Ritgen, in Knack / Henneke: VwVfG, 10th edition 2014 marginal 50 mwN. They thus originate from the sphere of the authority, not the applicant.
This deadline may seem extremely short, especially if an expert opinion has to be obtained first. However, it is the express wish of the federal legislator to speed up the procedures. This is also made clear once again by the Immigration of Experts Act. It would be contrary to the purpose of the law to make the duration of the procedure dependent on the unforeseeable processing time of the experts.
By the way, the factual and legal situation at the time of the last oral hearing or decision of the factual court is decisive for the assessment of the claim to the granting of a dental license. Thus, documents can still be submitted later. (NVwZ-RR 2014, 649, beck-online)
Suggestions and references to legal practice are welcome. Neither Beck, nor Juris or Jurion could give me a suitable commentary or jurisdiction on § 2 Abs. 6 Satz 1 Nr. 6 ZHG.