C-93/97

2 — That decree amended the Decree of the Flemish Community * Original language: Greek. of 12 June 1991 relating to universities in the Flemish Com- 1 — OJ 1993 L 165, p. 1. munity (Moniteur Belge of 4 July 1991).

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3. In summary, medical training in the Flem- 4. In Community law, the elements which ish Community of Belgium is as follows. O n must feature in the national systems govern- the one hand, academic training in medicine ing specialisation in general medical practice leading to a university degree is divided into are laid down in Directive 93/16/EEC, two courses extending over a total of seven which consolidates Council Directives

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3 4 75/362/EEC and 75/363/EEC of 16 June practical instruction given in a university or 1975 and also incorporates Council Directive under the supervision of a university.' 5 86/457/EEC of 15 September 1986.

Article 24 provides:

Article 23(1) of the Directive provides:

3 — Council Directive 75/362/EEC concerning the mutual recog­ nition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and free­ dom to provide services (OJ 1975 L 167, p. 1). 4 — Council Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, p. 14). 5 — Council Directive 86/457/EEC on specific training in general medical practice (OJ 1986 L 267, p. 26). 6 — For Belgium the relevant diploma referred to in Article 3 is the 'diplôme légal de docteur en médecine, chirurgie et (e) it shall involve the personal participation accouchemcnts/Wettelijk diploma van doctor in de genees-, heel- en verloskunde' (diploma of doctor of medicine, sur- of the doctor training to be a specialist in gery and obstetrics required by law) awarded by the univer- the activity and in the responsibilities of sity faculties of medicine, the Central Examining Board or the State University Education Examining Board. the establishments concerned.'

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The requirements to be met by specific train- however, without prejudice to the afore- ing in general medical practice are laid down said minimum periods, the practical in Articles 31 and 32 of the Directive. Article instruction may be given for a maximum 31(1), on which the outcome of this case period of six months in other approved turns, provides: health establishments or structures con- cerned with general medical practice;

5. The questions referred by the Cour (b) it shall be a full-time course lasting at d'Arbitrage to the Court of Justice for a pre- least two years, and shall be supervised liminary ruling relate exclusively to the point by the competent authorities or bodies; whether, on a correct interpretation of the Directive, a trainee must merely have obtained a certificate attesting that he has completed six years' study in order to begin specific training in general medical practice, or whether he must first also obtain the (c) it shall be practically rather than theo- medical qualification referred to in Article 3 retically based; the practical instruction of the Directive. Specifically, the three ques- shall be given, on the one hand, for at tions are as follows: least six months in an approved hospital or clinic with suitable equipment and services and, on the other hand, for at least six months in an approved general medical practice or in an approved centre where doctors provide primary care; it shall be carried out in contact with other '1. Must Article 31(l)(a) of Council Direc- health establishments or structures con- tive 93/16/EEC of 5 April 1993 to cerned with general medical practice; facilitate the free movement of doctors

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A — Question 1 3. If so, must that same provision be inter­ preted as meaning that the trainee should pursue the activities of a doctor from the beginning of the specific train­ ing in general medical practice, whether that training is the full-time training provided for by Article 31 of the direc­ 7. In my view, this question does not tive or the part-time training provided present particular difficulties; for that reason, for by Article 34?' moreover, the three Governments as well as

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9. The Federation states in response to that line of argument that, while Article 31 of the Directive may not expressly require a univer- sity degree in medicine to be obtained before specialisation in general medical practice begins, it nevertheless imposes that require- ment indirectly, but clearly, because it refers 8. That conclusion follows, first of all, from to Article 23 of the Directive. Specifically, the wording of Article 31(1) of the Directive, the Community legislature refers in which provides that entry to specific training Article 31(1) to six years' successful study '... in general medical practice is to be 'condi- within the framework of the training course tional upon the successful completion of at referred to in Article 23'. Furthermore, least six years' study within the framework Article 23 lays down, first, the features of the training course referred to in Article required of medical training, that is to say 23'. Had the authors of the Directive wished suitable scientific knowledge, clinical experi- the beginning of specific training to be con- ence and so forth and, secondly, the mini- ditional upon first obtaining a qualification mum duration of that training. In the view of in medicine, they would have stipulated that the Fédération, it is important that Article 23 as an express requirement. It should also be describes the 'complete period of medical noted that Article 24(1 )(a), which relates to training' 7 and does not merely provide that training leading to formal qualifications in medical studies must last at least six years. specialised medicine (other than in general Thus, the only logical and reliable interpreta- medical practice), requires the successful tion is that, since Article 23 requires a com- completion of six years' study before the plete period of medical training, it also pre- training begins, but does not expressly state supposes that the university degree ensuring that it is necessary first to graduate from a the 'completeness' of that training is medical faculty. Furthermore, the Commu- nity legislature expressed its will clearly in the preamble to the Directive, where it is stated that 'it is immaterial whether this 7 — Emphasis added by the Fédération.

10. I consider that the approach adopted by The first question must therefore be the Federation is faulty in its final conclu- answered in the negative. sion. I certainly agree that Article 31, with its reference to Article 23, requires a 'complete period of medical training' before specialisa- tion in general medical practice begins. I also accept that the most reliable means of 'attest- ing' that a student has successfully com- pleted that stage is for him to have obtained the university degree referred to in Article 3 Β — Questions 2 and 3 of the Directive. However, I do not think that it is a legal requirement that he must have graduated first, at least as regards Article 31(l)(a) of the Directive. If the uni- versities in the Flemish Community of Bel- gium meet, in the first six years of study, the criteria laid down by Article 23, I can see nothing to preclude the application of the provision in question, under which trainees 12. However, the answer to the first ques­ who have successfully completed those six tion referred for a preliminary ruling is only years' study may begin to specialise in gen- the tip of the iceberg. The issue as to eral medical practice even if they have not whether students must complete their basic yet graduated. medical studies by obtaining a university degree before they begin specialising in gen­ eral medical practice is raised again, indi­ rectly and perhaps more intractably, in the second and third questions. In particular, the referring court justifiably wonders whether Article 31(l)(d) of the Directive, which is concerned with the matters to be covered by 11. It accordingly appears, at least when training in general medical practice and answering the first question referred for a requires the trainee to participate personally preliminary ruling, that the Community leg- 'in the professional activities and responsi­ islature preferred to leave the Member States bilities of the persons with whom he works',

means that that trainee must first (and from from the wording of the Directive. First, it the beginning of the specific training) hold refers to Article 32, which makes provision the qualification referred to in Article 3 of for the case of specific training in general the Directive. medical practice by means of experience acquired by 'the medical practitioner in his own surgery under the supervision of an authorised training supervisor'. In its view, the use of the term 'medical practitioner' leaves no doubt that a trainee specialist in

In that that he must hold the university degree light, it is clearly more compatible with the referred to in Article 3 of the Directive. In above objective for Article 31(l)(c) and (d) particular, it is inconceivable that a person of the Directive to be given a strict interpre- who is not a doctor may participate in the tation, under which the trainee's practical professional activities of a doctor; in addi- preparation and his participation in the tion, it would be particularly dangerous to activities and responsibilities needed for a accept that persons who do not themselves complete training in general medical practice hold a degree in medicine may participate require him to hold a qualification in medi- personally 'in the .

First establishment and freedom to provide ser- of all, they refer to the argument expanded vices for the medical professions. by them in relation to the first question, according to which it is clear from the word- ing of the applicable provisions that the Community legislature did not intend train- ing in general medical practice to be depen- dent upon the prior award of a university 14. The plaintiff in the main proceedings degree. Furthermore, in the view of the Gov- relies on two arguments which it derives ernments of the two Belgian Communities

the fact that Article 31 refers to 'trainee' spe that the trainee fully assumes the responsi cialists in general medical practice and not to bilities of a doctor, but that he participates in 'medical practitioners' specialising in that the responsibilities of other persons with field supports that view. The Government of whom he works who, it goes without saying, the Flemish Community adds that the use of are doctors. the term 'medical practitioner' in Article 32 cannot undermine the assertions made in relation to the interpretation of Article 31: Article 32 governs the specific case of medi cal practitioners who are trained in general medical practice while practising autono mously in their own surgeries and the inter pretation to be given to that article therefore cannot be extended to the general system 17. Accordingly, the plaintiff in the main under Article 31, which lays down provi proceedings and the Belgian Government

Directive. The Government of the Flemish Community considers that the Court is not to answer that question if, as it suggests, the Court ultimately answers the second ques 16. The same reasoning is followed by the tion in the negative. The Government of the Commission, which points out the need to French Community considers it preferable distinguish between, first, the fundamental for a negative answer to be given in which it importance, for the grounding of specialists, is pointed out that the Directive does not of practical training in general medical prac require persons receiving training in general tice and, secondly, the independent pursuit medical practice to pursue all the activities of of the medical profession. According to the a doctor from the beginning of that training. Commission, when the authors of the Direc The Belgian Government also answers the tive refer to training which is to be 'practi third question in the negative; it adds that, cally rather than theoretically based' and is on a correct interpretation of the Directive, a to entail 'the personal participation of the national system may, but does not have to, trainee in the professional activities and provide that trainees in general medical prac responsibilities of the persons with whom he tice are to be qualified doctors from the works', their aim is not to acknowledge that beginning of that training. That is to say, it medicine may be practised independently regards as compatible with the Directive a but to organise training which, moreover, as national system under which, in the first year Article 31(1 )(b) expressly provides, is to be of specialisation, theoretical training only is 'supervised by the competent authorities or given and the trainee is not required to be a

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held by the plaintiff in the main proceedings, servants of Hippocrates. Therefore, in my which maintains that pursuit of the activities view at least, the Directive must necessarily of a doctor from the beginning of specific contribute 'to the attainment of a high level training in general medical practice is inextri- of health protection'. When the Directive cably linked with that training and with the was adopted, the Maastricht Treaty, which need for the trainee to be provided with added to Part One of the EC Treaty that the 'adequate preparation for the effective exer- Community must make a 'contribution to cise of general medical practice'. Finally, the the attainment of a high level of health pro- Commission appears not to follow the same tection', had not yet been ratified. 9 How- reasoning throughout when giving its views ever, I consider that that provision cannot be on the third question referred for a prelimi- immaterial to the outcome of this case and nary ruling. First it puts forward the view that, in the event of doubt, the solution that that question must be answered in the which corresponds more closely to the con- affirmative. Then, however, it maintains that cept of seeking a high level of health protec- in reality the Member States have a discre- tion is to be preferred. tion as to whether trainees in general medical practice must pursue the practical activities of a doctor within the limits laid down by Article 31(1)(d) from the beginning of their specialisation. 8

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However, even then, awarded after specific training in general the requirements laid down by Article 31 are medical practice is conditional upon the not necessarily met. In particular, the com- trainee's 'holding one of the diplomas, cer- bined effect of Article 31(1 )(a), (b) and (c) is tificates or other evidence of formal qualifi- as follows: on the one hand, specific training cations referred to in Article 3', so that the in general medical practice must be 'a full- trainee will, at least, have to hold a qualifica- time course lasting at least two years'; on the tion in medicine in order to become a gen- other hand, that specific training must, eral practitioner. However, in order for it to throughout its duration, 'entail the personal be possible for trainees to complete their participation of the trainee in the profes- specific training in general medical practice sional activities and responsibilities of the without having first obtained the university persons with whom he works'.

with whom they work. That, however, is the training extends over three or more years, issue to be resolved. that requirement must apply to all those years. In particular, with regard to the Flem- ish system which is of direct interest in this case, the obligation in Article 31(1)(d) also applies for the first year of specific training in general medical practice, and therefore also for a period during which trainees cer- tainly do not hold a university degree in 11 — That possibility may arise if the trainee passes the examina- tion included in the first year of the specific training but

same. Or course, in the latter case I am unable to under- stand why that national system allows a trainee to begin persons with whom he works, as required by specialising in general medical practice before he has obtained the university degree. Article 31(1)(d), means that he must first

have obtained the university degree referred 26. A number of weighty arguments support to in Article 3 of the Directive. a negative answer to that question. First of all, the Community legislature chose not to formulate Article 31(1)(d) in the same terms as Article 23(1). As the Commission cor- rectly states, a distinction may be drawn, theoretically at least, between the indepen- dent pursuit of a medical profession, which is directly linked to being qualified, and per- sonal participation in the professional activi- ties and responsibilities of one's superiors. In the latter case, the person concerned cannot act independently, but is subject to the supervision of those training him. Moreover, specific training in general medical practice 25. The key provision for answering the directly involves continuous supervision, as is clearly stated in Article 31(1)(b). above question is none other than Article 23(1) of the Directive, according to which 'the Member States shall require persons wishing to take up and pursue a medical pro­ fession ["activités de médecin"] to hold a diploma, certificate or other evidence of for- mal qualifications in medicine referred to in Article 3 ...'. That provision is, in my opin- ion, the cornerstone of the regulatory struc- 27. If the subject-matter of the questions ture which the Directive seeks to establish referred for a preliminary ruling were other for the medical profession; it is, furthermore, than that at issue, I consider that further the most important limit for interpreting analysis would not be required in order to Article 31(1 )(d) of the Directive correctly. answer them. However, certain specific and The problem may be put as follows: is 'the by no means insignificant factors complicate personal participation of the trainee in the the problem. The basic objection to the pos- professional activities and responsibilities of sibility of drawing a clear distinction the persons with whom he works' tanta- between the 'pursuit' of a medical profession mount to the taking up and pursuit of a and 'personal participation' in activities and medical profession, for which it is necessary responsibilities of another person who is a to hold a qualification in accordance with specialist medical practitioner stems from the Article 23? 12 very nature of medical practice.

the activities of the doctor training him and Treaty does not preclude a Member State not merely to assist. However, how far does from restricting an activity ancillary to medi­ 'personal participation' extend in the areas of cine ... exclusively to persons holding the diagnosis, treatment and clinical aftercare of qualification of doctor of medicine'. I con­ patients, that is to say in relation to impor­ sider that two important conclusions may be tant and, at the same time, sensitive areas of drawn from that view taken by the Court. human health which fall within the responsi­ First, there is no clear or commonly accepted bilities of a doctor? It should be noted that I definition of the concept of a medical profes­ do not base that doubt only on everyday sion as found in Article 23 of the Direc­ experience and the perception which I may tive. 1 4 Secondly, because the scope of such have of that issue as a lawyer, that is to say activities of a doctor is not clearly delimited not as a specialist in medical matters. I rely, the Court appears to accept a wide interpre­ first, on the fact that none of those who have tation thereof (which, in the final analysis, is asserted in this case that a clear distinction that given by the Member States) even may be drawn between the independent pur­ though in that way activities which are not suit of a medical profession and personal purely medical in nature may wrongly be participation in such activity has adduced covered. 15 evidence in that regard. Secondly — and, in my view, more importantly — the concept of the activity of a doctor has not yet acquired a clear and certain meaning in Community law.

considered to amount to the 'independent recognised that danger in Bouchoucha, where pursuit' of a medical profession or 'personal it concluded that it was preferable for the participation' in the practice and responsi Member States to be allowed to opt for a bilities of another doctor depends on wide definition of the term 'medical acts' at 1 whether a wide or a narrow definition is the expense of related terms. 6 Adopting given to 'medical profession', for which there similar reasoning, I consider that it is is no commonly accepted definition in Com sounder in this case to interpret Article munity law. 31(1)(d) of the Directive strictly, in order to safeguard the effect of Article 23(1), even if, at first sight, it does not appear to be neces sary as a matter of logic to compare or even to equate 'personal participation' in the activities of a doctor with the 'independent' taking up and pursuit of that profession. Moreover, where there are doubts as to the correct interpretation as in this case, it is, in

If it interprets that provision in a less 'exacting' manner, accepting that a trainee may in fact specialise in general medical practice without first obtaining the medical qualification, the result may ultimately be that, because of the lack of clarity which I have referred to, the fundamental rule in Article 23 of the Direc tive, under which a person wishing to take 33. The Community legislature of course up and pursue a medical profession is has the power to amend the legislation in the required to hold a medical qualification referred to in Article 3 of the Directive, is restricted or even indirectly circumvented. 16 — In that case, the scope of the term 'activity ancillary to medicine' was at issue. 17 — For the use of Article 3 of the EC Treaty as a criterion when seeking to establish the correct meaning of the provi sions of the Directive, see point 18 above. Furthermore,

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future in such a way that, while allowing and, on the other, medical activities which specialisation in general medical practice only a qualified doctor can pursue. It can without the qualification in medicine being also be checked whether that solution is obtained first, it creates a clear distinction compatible with the principle in Article 3 of between, on the one hand, the subject-matter the Treaty regarding the attainment of 'a of the practical part of the specific training high level' of health protection.

VI — Conclusion

34. In the light of the foregoing considerations, I suggest that the Court should reply to the questions referred for a preliminary ruling as follows:

Article 31(1) of Directive 93/16/EEC to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, which lays down provisions relating to training in general medical practice, in conjunction with Articles 23 and 3 of the Directive, requires the qualification, diploma or certificate in medicine referred to in Article 3 of the Directive to be obtained before training in general medical practice may begin, by reason of the practical nature of that training.