C-246/80

In Case 246/80

REFERENCE to the Court under Article 177 of the EEC Treaty by the Commissie van Beroep Huisartsgeneeskunde [Appeals Committee for General Medicine], The Hague, for a preliminary ruling in the proceedings pending before that committee between

C. BROEKMEULEN, a doctor practising at Kerkdriel,

and

HUISARTS REGISTRATIE COMMISSIE [General Practitioners Registration Committee],

on the interpretation of Council Directive 75/362/EEC of 16 June 1975 (Official Journal 1975, L 167, p. 1) concerning the mutual recognition of

JUDGMENT

Facts and Issues

The order for reference, the course of arrangements are contained in the the procedure and the observations statutes and the internal regulations of submitted pursuant to Article 20 of the the Koninklijke Nederlandse Maat- Statute of the Court of Justice of the schappij tot Bevordering der Genees- EEC may be summarized as follows : kunst (Royal Netherlands Society for the Promotion of Medicine, hereinafter referred to as "the Society"). A summary I — Facts and written procedure of those rules is given below. The requirements to be met in order to 1. In the Netherlands special be recognized as a general practitioner arrangements have been made for are laid down by the College voor granting recognition as a "huisarts" Huisartsgeneeskunde (Council for (general practitioner), in other words a General Medicine), which is an organ of doctor qualified tó practise general the Society. The decisions of that medicine and to give primary medical Council are subject to review by the assistance. The rules governing those Netherlands Government.

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3. The preamble to Order No 1-1977 2. The applicant in the main of the Council for General Medicine proceedings, Dr Broekmeulen, is a (hereinafter referred to as Order No Netherlands national. On 30 June 1979, I-1977) and Article 1 thereof are worded as a result of the examinations which he as follows: took at the Faculty of Medicine in the Catholic University of Louvain, Belgium, he obtained the diploma of doctor of "The Council for General Medicine . . . medicine, surgery and obstetrics referred to in Article 3 (b) of Council Directive 75/362/EEC of 16 June 1975. Having regard to the entry into force on 20 December 1976 of Directives 75/362/EEC and 75/363/EEC of the Pursuant to the provisions of Article 2 of European Community concerning the the Wet Regelende de Uitoefening der right of establishment of doctors within Geneeskunst [Law regulating the practice the Community;

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has decided 4. Dr Broekmeulen argued before the Appeals Committee that, having regard to its preamble, Order No 1-1977 applies that doctors with foreign diplomas who to "nationals of Member States of the have been authorized to practise European Community who are in medicine in the Netherlands shall be possession of one of the doctor's enrolled on the register of recognized diplomas recognized by virtue of the general practitioners in accordance with directives of the European Community" the following provisions : and that he fell within that class of persons. In the alternative, he argued that the provisions of Order No 1-1977 Article 1 could not be relied on against him because his right to be enrolled on the register of recognized general Nationals of the other Member States of practitioners without having undergone the European Community who are in the year's training as a general possession of one of the diplomas in practitioner in the Netherlands, flowed medicine awarded in the other Member directly from Directives 75/362/EEC States and recognized by virtue of and 75/363/EEC. EEC Directives 75/362/EEC and 75/363/EEC and who submit to the General Practitioners Registration Com­ mittee proper evidence that they have By order of 21 October 1980, registered been authorized to practise medicine in at the Court on 4 November 1980, the the Netherlands shall at their request be Appeals Committee stayed the pro­ enrolled on the register of recognized ceedings pursuant to Article 177 of the general practitioners." EEC Treaty and referred the following

question to the Court for a preliminary the ministers whose departments are ruling: responsible for higher education and public health respectively; "Does it follow from Directives 75/362/EEC and 75/363/EEC (Official (b) By virtue of Article 1109 of the Journal L 167 of 30 June 1975) that a internal rules, the orders of the Netherlands national who has obtained Council for General Medicine which in Belgium the Wettelijk Diploma van lay down the requirements Doctor in de Genees-, Heel- en Verlos- concerning the training of general kunde [diploma of doctor of medicine, practitioners, training practices and surgery and obstetrics] and who is institutions for general practitioners, consequently entitled to practise in are subject to supervision by the Belgium as a general practitioner has the aforementioned ministers, which is right, on becoming established in the exercised in the form of a right of Netherlands, to be enrolled on the veto; register of recognized general prac- titioners kept by the Royal Netherlands (c) The Royal Decree of 4 January 1966 Society for the Promotion of Medicine (Staatsblad 3), adopted pursuant to without first having undergone training the Sickness Insurance Law and in the Netherlands as a general amended by the Royal Decree of 15 practitioner? For the purpose of this August 1973 (Staatsblad 428), laying question it is assumed that by virtue of down the "Verstrekkingenbesluit" mandatory provisions of Netherlands law [Decree concerning benefits], defines enrolment on the said register is possible "general practitioner" as a doctor only after that training has been enrolled on the register of re- undergone and that a doctor may cognized general practitioners kept practise in the Netherlands as a general by the Society; practioner only after enrolment on the said register." (d) By virtue of that provision doctors who are not enrolled on that register It is clear from the order for reference are not able to have their practices that the Appeals Committee thought that recognized by sickness insurance Article 1 of Order No 1-1977 must be funds and it therefore becomes in interpreted as meaning that a doctor of fact impossible to extend treatment Netherlands nationality holding a to a large number of potential Belgian diploma of medicine may be patients; private insurers define enrolled on the register of recognized "general practitioner" in exactly the general practitioners only if he has same way as the decree concerning undergone a period of training of one benefits; year in general medicine in the Netherlands. (e) The effect of that decree is that the provisions of the statutes and internal rules of the Society apply compul- The Committee also noted that: sorily to all doctors, including those who are not members of the Society. (a) Article 26 of the statutes of the Society provides that those pro- visions of the internal rules of the The Appeals Committee also made the Society which relate to the following findings of fact: recognition and registration of general practitioners may be (a) On the basis of his Belgian diploma, amended only in consultation with Dr Broekmeulen was granted auth-

orization to practise medicine in the (5), 1120 (7), 1122 (4) and 1125 (7) of Netherlands in accordance with the internal rules. Article 2 of the Wet Regelende de Uitoefening der Geneeskunst [Law The rules governing ,the hearing of regulating the practice of medicine]; appeals by the Committee are of general in that respect there is no difference application. As a result of the decree between him and a Netherlands concerning benefits the binding effect of national holding a diploma of decisions of the Appeals Committee medicine awarded by a Netherlands extends, according to the Committee, university. beyond the body comprising the members of the Society. (b) The Belgian diploma of medicine entitles the holder to practise general medicine in Belgium. 5. Pursuant to Article 20 of the Protocol on the Statute of the Court of (c) On several occasions Belgian Justice of the EEC written observations nationals holding a Belgian medical were submitted by the following: Dr diploma have, upon making Broekmeulen, the applicant in the main application, been enrolled on the proceedings, represented by G. van der register of general practitioners Wal, Advocate, Tilburg; the Registration without further formality. Committee, the defendant in the main proceedings, represented by B. H. ter Kuile of the Hague Bar; the Netherlands As regards the applicability of Article Government; and the Commission of the 177 of the EEC Treaty, the Appeals European Communities, represented by Committee considers that prima facie it H. J. Bronkhorst, a member of its Legal should be regarded as a "court or Department, acting as Agent, and tribunal" within the meaning of Article assisted by Christine Berardis-Kayser, a 177 of the EEC Treaty. In this regard member of its Legal Department. the Appeals Committee points out that the provisions of the internal rules of the Upon hearing the report of the Judge- Society concerning the recognition and Rapporteur and the views of the registration of general practitioners, Advocate General, the Court decided to including the rules as to the composition, open the oral procedure without any functions and procedure of the Appeals preparatory inquiry. However, the Court Committee (Articles 1102 and 1129 to invited the Netherlands Government to 1132), are subject to ministerial reply, in writing, to certain questions supervision. concerning the legal status of the Appeals Committee. The Minister for Health and the Minister for Higher Education appoint the chairman and two members of the Appeals Committee (Articles 1129 and II — Written observations sub­ 1031 (1) (d)). For the office of chairman mitted to the Court a high-ranking judge is preferred.

internal rules of that organization lay orders are also subject to government down the procedure for registration supervision. Therefore the Appeals subject to a right of appeal and, in the Committee may be said to apply rules of context of that procedure, the Appeals law in deciding cases brought before it. Committee is the highest decision- making body. Article 1132 of the internal rules governs the procedure to be followed before He considers, however, that it would be the Appeals Committee. The Appeal open to him to appeal against the final Committee may invite the persons decision of the Appeals Committee to the concerned to appear before it.

In addition the The Netherlands Government points out Netherlands Government refers to the that the Appeals Committee is made up judgment of the Court of 30 June 1966 of three members appointed by the in Case 61/65 Vaassen (née Goebbels) medical faculties and three members ([1966] ECR 261 et seq.) appointed by the Board of the Society. A further two members are appointed by The Commission of the European the ministers responsible respectively for Communities refers in the first instance higher education and for health and the to the judgment of the Court of 30 June chairman of the Committee is appointed 1966 in Case 61/65 (loc. cit.). by the same ministers. At the same time a

BROEKMEULEN ν HUISARTS R E G I S T R A T I E COMMISSIE

Dr Broekmeulen points out that the Furthermore, the Netherlands Secretary registration of general practitioners in of State for Health stated the attitude of the Netherlands is entrusted to a private the Netherlands Government on the association. The application of the question of the implementation of the

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qualifications mentioned in the directives that reason that the Commission from establishing themselves as general submitted a proposal for a supplementary practitioners and from receiving directive concerning general prac recognition under sickness insurance titioners. schemes without undergoing any special training. The above-mentioned Order The Registration Committee states that N o 4-1980, however, prevents this from special training for general practitioners being the case. The same applies mutatis was introduced in the Netherlands on 1 mutandis to Netherlands nationals who May 1973.

First, the entitled to be enrolled on the register directives in question do not contain any of recognized general practitioners. provisions concerning the mutual According to Order No 1-1977 recognition of the various training registration is open to "nationals of the schemes for general practitioners other Member States of the European undergone after the examination in Community who are in possession or one medicine. Such schemes already existed of the doctor's diplomas awarded in the in certain Member States. Secondly, the other Member States and recognized by freedom to provide services and the right virtue of EEC Directives 75/362/EEC of establishment in medicine within the and 75/363/EEC".

In the applicant's view, the directives concerned apply to doctors and "Nationals of Member States wishing to specialists, including general prac acquire one of the diplomas, certificates

The Netherlands Government states that As regards general practitioners, the it had already become apparent during Advisory Committee on Medical the 1960s that additional training for Training suggested in its opinion of 13 general practitioners would be desirable. November 1979 that Member States In spite of the plans to introduce training should "recognize general medicine as a schemes for general practitioners in the special discipline, akin to recognized Netherlands, the government, not specialized disciplines, with a view to wishing to delay finalization of the applying Article 8 of Directive 75/362/ directives, expressly stated in 1973 within EEC". The Commission of the European the Council that such additional training Communities had regard to that opinion would not be required of holders of in its draft proposal of 24 January 1980 diplomas awarded by other Member for a Council directive on general States and recognized under Article 3 of practitioners to supplement Directives Directive 75/362/EEC if they wished to 75/362/EEC and 75/363/EEC. establish themselves in the Netherlands. In this regard, the following statement, contained in the minutes of the Council The Netherlands Government refers to meeting should be noted: "The Council the judgments of the Court of 7 notes that in a number of Member States February 1979 in Case 115/78 J. Knoors a general tendency is emerging which ν Secretary of State for Economic Affairs lays stress upon the role of the general [1979] ECR 399 and Case 136/78 practitioner and the importance of his Ministère Public ν Vincent Auer [1979] training. The Council requests the ECR 437. Commission to study the problems arising from this trend and to submit appropriate proposals." The Netherlands Government regrets that additional The classes of persons to whom directives on this matter have not yet Directive 75/362/EEC applies are been adopted. defined in Article 2 thereof. In the light of Case 115/78 J. Knoors [1979] ECR 399, the Netherlands Government The Commission of the European considers that that definition should be Communities states that the problem construed broadly in the sense that posed by Dr Broekmeulen's case should nationals of all Member States must be be seen against the background of an able to avail themselves of the inadequate training capacity in the liberalizing measures which it lavs down, medical field. The problem arises, first, provided that they come objectively in the universities, where it has led to the within one of the situations provided for introduction of measures restricting by the directive, and no differential admission to medical faculties. In

addition, the facilities for special training undoubtedly a precondition for the of general practitioners are also inad- effective pursuit of the profession of equate in the Netherlands. It appears doctor in a Member State. Where a that the waiting time for admission to doctor has the right to practise medicine such training courses may be as much as but may not treat patients covered by a two years. sickness insurance scheme, such as is the case in the Netherlands, the effective The scope of Article 2 of Directive pursuit of the profession of doctor is

The principle upon which Directive "The Statement by the Council concerning 75/362/EEC is based is that every the definition of the persons covered by the national of the Community holding one directives of the diplomas of doctor of medicine listed in Article 3 !of the directive is entitled to take up and pursue the The Council confirms that it is to be profession of doctor. For that reason, the understood that freedom of establish- Commission, concludes by proposing ment, particularly for the holders of that the Court should reply to the certificates obtained in the other question referred to it as follows: Member States, must be accorded on the same terms to nationals of other Member States and to nationals of the Member "It follows from Directives 75/362/EEC State concerned, as is the case with other and 75/363/EEC that a Netherlands directives." national who has obtained in Belgium the 'diploma of doctor in medicine, surgery and obstetrics', is entitled, on That statement accords with the settling in the Netherlands, to be decisions of the Court in this matter. In enrolled on the register of recognized the words of Article 57 (1) of the Treaty, general practitioners kept by the Royal the directives in question are intended to Netherlands Society for the Promotion facilitate the taking-up and pursuit of of Medicine, without first having to activities by persons wishing to enjoy undergo a period of training in general their right of free movement, as medicine in the Netherlands." guaranteed by the Treaty.

BROEKMEULEN ν HUISARTS REGISTRATIE COMMISSIE

In the light of the solely from the statutes and rules of the composition of the Appeals Committee it Society. Those ministers do not have any may also be taken for granted that the independent powers by virtue of public Committee will consider itself bound by law to give instructions to the Society, of the preliminary ruling of the Court. their own motion, concerning the standards to be observed in the admission and registration of specialists, social-security doctors or general The Netherlands Government is of the practitioners. view that doctors who are not members of the Society may apply directly to the ordinary courts for individual review of the decisions of the Registration Therefore the decisions of the Society Committee since the internal rules of a may not in law be imputed to the private organization may not oust the

Society. Nevertheless, decisions taken by appeal then lies to the ordinary courts those organs remain in the nature of for the quashing of decisions, which inter decisions taken by a legal person alia are in conflict with mandatory governed by private law. legislative provisions. The ordinary courts may nave regard to all relevant aspects of the dispute in order to assess The Netherlands Government points out the legality of the contested decision. that under Netherlands law a judicial body, as an organ of the State, must be invested as such by law. It is clear in the

In this respect decisions within the meaning of Article 177 of the taken by the organs of the Society do EEC Treaty. In this respect, it assumes not constitute an exception.

3 It is apparent from the documents in the case and from the evidence given by the parties that the Registration Committee and the Appeals Committee are bodies established by the Royal Netherlands Society for the Promotion of Medicine (hereinafter referred to as "the Society"). The Society is

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constituted as a private association under Netherlands law and the great majority of doctors practising in the Netherlands belong to it; one of its aims is to improve the training of doctors, including post-university education, from a theoretical and practical point of view. The internal rules of the Society include provisions concerning the recognition and registration of medical specialists, experts in social medicine and general practitioners; according to the statutes of the Society, those provisions of its internal rules may be amended only in consultation with the ministers whose departments are responsible for higher education and public health respectively.

4 The recognition and registration of general practitioners are governed by Articles 1101 to 1135 of the internal rules of the Society. Those rules provide for three bodies to be set up: the College voor Huisartsgeneeskunde [Council for General Medicine], whose main function is to lay down the requirements for the training of general practitioners; the Registration Committee, which is essentially responsible for registering as general practitioners those doctors who request such registration, provided that they satisfy the requirements laid down by the Council for General Medicine; and the Appeals Committee, which is charged with hearing appeals against decisions of the Registration Committee.

7 That decision was challenged before the Appeals Committee, which stayed the proceedings in order to refer the following question to the Court for a preliminary ruling: "Does it follow from Directives 75/362/EEC and 75/363/EEC (Official Journal L 167 of 30 June 1975) that a Netherlands national who has obtained in Belgium the Wettelijk Diploma van Doctor in de Genees-, Heel- en Verloskunde (diploma of doctor of medicine, surgery and obstetrics) and who is consequently entitled to practise in Belgium as a general practitioner has the right, on becoming established in the Netherlands, to be enrolled on the register of recognized general practitioners of the Royal Netherlands Society for the Promotion of Medicine without first having undergone training in the Netherlands as a general practitioner?" The Appeals Committee stated that by virtue of mandatory provisions of Netherlands law enrolment on the said register is possible only after that training has been undergone and that a doctor may practise in the Netherlands as a general practitioner only after enrolment on the said register.

The applicability of Article 177

8 The Appeals Committee is a body set up by the Society and it is appropriate therefore to deal first with the question whether it ought to be considered as a "court or tribunal" of a Member State within the meaning of Article 177 of the Treaty.

9 According to the internal rules of the Society, the Appeals Committee, appointed for a period of five years, is composed of three members appointed by the Netherlands medical faculties, three members appointed by the Board of the Society and three members, including the chairman (pre- ferably a high-ranking judge), who are appointed by the ministers responsible for higher education and health respectively. It may therefore be seen that the composition of the Appeals Committee entails a significant degree of involvement on the part of the Netherlands public authorities.

13 A study of the Netherlands legislation and of the statutes and internal rules of the Society shows that a doctor who intends to establish himself in the Netherlands may not in fact practise either as a specialist, or as an expert in social medicine, or as a general practitioner, without being recognized and registered by the organs of the Society. In the same way it may be seen that the system thus established is the result of close cooperation between doctors who are members of the Society, the medical faculties and the departments of State responsible for higher education and health.

1 4 It is thus clear that both in the sector covered by the social security system and in the field of private medicine the Netherlands system of public health operates on the basis of the status accorded to doctors by the Society and that registration as a general practitioner is essential to every doctor wishing to establish himself in the Netherlands as a general practitioner.

15 Therefore a general practitioner who avails himself of the right of establishment and the freedom to provide services conferred upon him by

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Community law is faced with the necessity of applying to the Registration Committee established by the Society, and, in the event of his application's being refused, must appeal to the Appeals Committee. The Netherlands Government expressed the opinion that a doctor who is not a member of the Society would have the right to appeal against such a refusal to the ordinary courts, but stated that the point had never been decided by the Netherlands courts. Indeed all doctors, whether members of the Society or not, whose application to be registered as a general practitioner is refused, appeal to the Appeals Committee, whose decisions to the knowledge of the Netherlands Government, have never been challenged in the ordinary courts.

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diploma listed under Article 3 of Directive 75/362/EEC and recognized in every Member State by virtue of Article 2 of that directive may avail himself of those provisions if he intends to establish himself in the Netherlands.

19 Under Article 2 of the directive each Member State is to recognize the diplomas listed in Article 3 "awarded to nationals of Member States by the other Member States". It follows from that wording that the provision may be invoked in one Member State by the nationals of all Member States who have obtained, in another Member State, a diploma listed under Article 3.

20 Such an interpretation accords, moreover, with the requirements flowing from the free movement of persons, the right of establishment and the freedom to provide services guaranteed by Articles 3 (c), 48, 52 and 59 of the Treaty. Those freedoms, which are fundamental to the system set up by the Community, would not be fully realized if Member States were able to deny the benefit of provisions of Community law to those of their nationals who have availed themselves of the freedom of movement and the right of establishment and who have attained, by those means, the professional qualifications mentioned in the directive in a Member State other than the State whose nationality they hold.

21 The second problem envisaged by the question asked is whether a Member State may make the practice of general medicine, by the holder of a diploma awarded in another Member State and recognized by virtue of the provisions of Directive 75/362/EEC, subject to the completion of a period of additional training, a requirement which that Member State also imposes on holders of diplomas of medicine awarded within its own territory.

23 T h a t line of reasoning, however, runs counter t o the general structure of Directive 7 5 / 3 6 2 / E E C , which is based on the distinction between the recognition of diplomas of medicine (Articles 2 and 3) and recognition of diplomas of specialized medicine (Articles 4 to 8). Article 2 of the directive requires Member States to recognize as equivalent the diplomas listed in Article 3, as far as the right to take up and pursue the self-employed activities of a doctor is concerned. It is only in so far as the training of specialists is concerned that Articles 4 to 8 of the directive permit the Member State in which the doctor wishes t o practise t o lay down additional requirements. Such an interpretation is, moreover, reinforced by the preamble to the directive, which states that "the aim of this directive is the recognition of diplomas . . . whereby activities in the field of medicine can be taken up and pursued, and the recognition of diplomas . . . in respect of specialists".

24 It is not disputed — and is in any case clear from the wording of Articles 5 and 7 of the directive — that general practice, as understood by the Netherlands legislation, is not recognized as a branch of specialized medicine by the directive. Therefore, in a situation such as that existing in the Netherlands, where the practice of medicine is made subject to the recognition of the doctor as a general practitioner, the right t o practise of a holder of a diploma awarded in another Member State flows directly from recognition of the diploma under Article 2 of the directive and does not depend upon any additional qualification obtained in the State in which the doctor wishes to practise.

Costs

28 The costs incurred by the Netherlands Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision as to costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the question referred to it by the Commissie van Beroep Huisartsgeneeskunde by order of 21 October 1980, hereby rules:

Council Directive 75/362/EEC is to be interpreted as meaning that a national of a Member State who has obtained a diploma listed under Article 3 of the directive in another Member State and who, by that

O P I N I O N OF MR ADVOCATE GENERAL REISCHL DELIVERED O N 25 JUNE 1981 1

Mr President, "Each Member State shall recognize the Members of the Court, diplomas, certificates and other evidence of formal qualifications awarded to In the request for a preliminary ruling nationals of Member States by the other which we have to deal with today we are Member States in accordance with essentially required to define the Article 1 of Directive 75/363/EEC and substance and scope of Article 2 of which are listed in Article 3, by giving Council Directive 75/362/EEC of 16 such qualifications, as far as the right to June 1975 concerning the mutual take up and pursue the self-employed recognition of diplomas, certificates and activities of a doctor is concerned, the other evidence of formal qualifications in same effect in its territory as those which medicine, including measures to facilitate the Member State itself awards." the effective exercise of the right of establishment and freedom to provide services (Official Journal L 167 of 30. 6. On 30 June 1979 as a result of his 1975, p. 1). Article 2 provides as follows: studies in the Faculty of Medicine at the 1 — Translated from the German.