C-238/98

5. In 1982, Dr Hocsman was awarded the 2. The facts, as they appear from the order qualification of specialist medical practi- for reference and the various observations tioner in urology, for academic purposes, submitted to the Court, are as follows. by the Spanish Ministry of Education and Science, and a specialist diploma in urology by the University of Barcelona. In 1986, the Ministry of Education and Science confer- red validity for professional purposes on the university diploma following Dr Hocs- 3. Dr Hocsman was originally of Argentine man's acquisition of Spanish nationality. nationality. In 1986, he acquired Spanish Various certificates attest to his having and in 1998, after the commencement of completed medical internships prior to the proceedings before the national court, obtaining those qualifications, and there- French nationality. after to his having held various posts as resident, then assistant, in Spain and, since 1990, France, in each case specialising in * Original language: English. urology.

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OPINION OF MR JACOBS — CASE C-238/98

6. It appears that Dr Hocsman's employ- him enrolment in the Ordre des Médecins, ment as a hospital doctor in France was on Dr Hocsman applied to the Minister for the basis of a series of fixed-term contracts Health for individual authorisation to under rules which allowed public establish- practise medicine as a urologist in France. ments to engage, in a supervised capacity, persons holding medical qualifications obtained outside the Community or the European Economic Area. Those rules were repealed in 1995, with the result that his contract could no longer be renewed when it next expired. Dr Hocsman has conse- 9. The response to that request seems to quently been unemployed, we were told at have come in a letter of 27 June 1997 from the hearing, since late 1997. the Ministry of Employment and Solidarity, confirming that:

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equivalent to the Spanish diploma does not State is required to verify, on the basis of entitle him to practise medicine in France. Article 52 of the EC Treaty, whether the experience and qualifications evidenced thereby correspond to those required for the award of national diplomas and other formal qualifications, in particular where the person benefiting from such equiva- …' lence holds a diploma providing evidence of specialist training acquired in a Member State and included in the scope of a directive concerning the mutual recognition of diplomas.'

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OPINION OF MR JACOBS — CASE C-238/98

The relevant Community law provisions force since 1975. 3The legislation presently in force is Directive 93/16 4('the Direc- tive').

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least six years or 5 500 hours of theoretical vided that the basic training stipulated by and practical instruction. the Directive has itself been completed.

18. Comparable rules relating to specialist qualifications are provided for in Arti- cles 4, 5 and 24 of the Directive. Pursuant to Article 4, Member States are to recog- 21. Three other provisions of the Directive nise and give effect to the qualifications in should be mentioned. Under Article 9(2), specialised medicine listed in Article 5 and specialist qualifications acquired in Spain awarded to nationals of Member States by or Portugal on completion of training the other Member States in accordance which commenced before 1 January 1986 with, inter alia, Article 24. and which do not satisfy all the minimum training requirements specified are none the less to be recognised where evidence of a sufficient period of subsequent practice is produced. (In 1992, Dr Hocsman obtained a certificate from the Spanish Ministry of Education and Science attesting that his 19. Article 5 lists, for Spain, the 'Título de specialist diploma, although obtained after Especialista' (professional qualification of only two years' training, was one of the specialist) awarded by the Ministry of kind referred to in the directive then Education and Science and specifies urol- applicable 5 and that he had subsequently ogy as an area of specialised medicine to practised as a specialist for a period of six which Articles 4 and 5 apply. Article 24 years, thus complying with the require- lays down minimum requirements which ments of Article 9(2) of that directive for such qualifications must meet; in particular his specialist qualification to be recognised they must entail completion of at least six elsewhere in the Community.) years' study and they may be awarded only to persons possessing one of the basic qualifications in medicine referred to in Article 3, awarded following completion of a period of medical training as referred to in Article 23.

obtained in a Member State to take up and 25. Thus, in addition to the obligation to pursue the activities of a doctor.' 6 recognise medical qualifications meeting specified minimum requirements, Member States must also, in certain limited circum- stances, recognise periods of practice as partly compensating for certain failures to meet those requirements, with specific regard to length of training, and must ensure that practitioners possess appropri- ate linguistic knowledge. And whilst 23. In that connection, it may be noted that mutual recognition of the appropriate a current Commission proposal for amend- Community qualifications is compulsory, ments to the Directive 7contains the fol- recognition of those issued outside the lowing provision: 'Member States shall Community is not. take account of diplomas, certificates and other evidence of formal qualifications of... doctor obtained by the holder outside the European Union in cases where those diplomas, certificates and other evidence of formal qualifications have been recog- nised in a Member State, as well as of training undergone and/or professional experience gained in a Member State.' The position under the Directive

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mas, certificates and other evidence of Haim I 9and Tawil-Albertini, 10 both of formal qualifications listed in Article 3, which concerned a coordinating directive possession of which is a condition for in the area of dentistry 1 1containing provi- obtaining recognition in another Member sions comparable to those of the Directive. State. Thus in my view a person who does not hold such a basic medical qualification cannot come within the ambit of the mutual recognition provisions of the Direc- tive. Although it is not for the Court to decide the facts of the case, it appears undisputed that Dr Hocsman does not hold 30. Haim I involved an application by a a qualification listed in Article 3, but rather Community national to be exempted from a basic medical qualification from outside a requirement to complete a preparatory the Community which has been recognised training period before becoming eligible to by one Member State, Spain, as being practise within the national social security equivalent to a qualification that does scheme. The Court ruled that Directive appear in that list. 78/686 did not prevent a Member State from imposing such a training period on a person holding a non-Community qualifi- cation, even where it had been recognised by another Member State as equivalent to a qualification named in the directive and the person had been authorised to practise in that other Member State. 12

33. There is some dispute on this point, as 35. Article 4 subjects the compulsory the Spanish Government claims that Dr recognition of specialist qualifications to Hocsman's diploma is not such a qualifica- the conditions set out in, inter alia, Arti- tion. Its initial contention that the diploma cles 5 and 24. Articles 24(1)(a) and 24(2) was merely a university degree, not a make it clear that a specialist qualification professional qualification, was withdrawn of the sort capable of generating an obliga- at the hearing, since it was contradicted by tion of recognition presupposes the posses- a letter dated 12 April 1986 from the sion of a basic qualification that has itself Ministry of Education and Science, confer- been obtained in a Member State. It is clear ring validity for professional purposes on from the Directive as a whole and from its the university diploma that Dr Hocsman preamble 14 that the aim is to ensure the had previously acquired. However, the coordination of standards at all levels as a Spanish Government maintained that the prerequisite for compulsory mutual recog- specialist diploma was awarded after only nition. Thus, recognition at the level of two years' training and thus did not fall specialist diplomas presupposes, in the within the scope of the Directive. It seems scheme of the Directive, that a sufficient to me, though, that the diploma might have degree of coordination has been achieved. fallen within the scope of the Directive by virtue of Article 9(2) of the Directive and Dr Hocsman's subsequent period of prac- tice in Spain, had Dr Hocsman's basic medical qualification been of the kind referred to in Articles 3 and 23.

The position under Article 52 of the 39. The Treaty itself already prohibits EC Treaty restrictions on freedom of establishment for Community nationals. The role of directives is to create a framework of common minimum standards within which mutual recognition of professional qualifi- cations obtained within the Community becomes not only possible, but even com- 37. As a preliminary matter, a view put pulsory. Thus the purpose of Article 57(3) forward by the Italian and Spanish Gov- of the EC Treaty is not to permit freedom ernments, and espoused by the French of establishment for the medical profes- Government at the hearing, is that the sions in the first instance, but simply to Court's case-law on Article 52 of the EC ensure that systematic mutual recognition Treaty is not applicable to the present case. of qualifications does not take place with- It is argued that freedom of establishment out coordination of provisions governing with respect to the medical professions can the exercise of those professions. It does not take place only within the framework of supplant the basic right to freedom of Article 57(3) (now, after amendment, Arti- establishment provided by Article 52 of cle 47(3) EC) 15 and is a matter now the EC Treaty for all professions, whether exhaustively regulated by the Directive. medical or otherwise. The case-law on the former article, by contrast, relates to professions such as lawyers (Vlassopoulou 16) and estate agents (Aguirre Borrell 17), at a time when no coordinating directive had yet been 40. Indeed, in the Vlassopoulou and adopted with regard to those professions. Aguirre Borrell cases the Court held that That case-law is thus irrelevant with regard 'in laying down that freedom of establish- to the practice of medicine. ment is to be attained by the end of the transitional period, Article 52 of the Treaty thus imposes an obligation to attain a precise result, the fulfilment of which had to be made easier by, but not made dependent on, the implementation of a programme of progressive measures'. 18

'16 ... a Member State which receives a request to admit a person to a profes- sion to which access, under national law, depends upon the possession of a diploma or a professional qualification must take into consideration the diplo- mas, certificates and other evidence of 42. It is true that the current Commission qualifications which the person con- proposal to amend the Directive 20 specifi- cerned has acquired in order to exercise cally inserts a requirement to take account the same profession in another Mem- of non-Community qualifications which ber State by making a comparison have been recognised in a Member State. between the specialised knowledge In my view, however, the Italian Govern- and abilities certified by those diplo- ment is incorrect to argue from this that mas and the knowledge and qualifica- there is no such requirement at present. On tions required by the national rules. the contrary, the sixth recital in the pre- amble to the proposal makes it clear that the amendment is to bring the Directive into line with the judgment in Haim I — that is to say, with the situation already prevailing under the Treaty.

17 That examination procedure must enable the authorities of the host Member State to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which 43. Since neither Article 57(3) of the EC are, if not identical, at least equivalent Treaty nor the Directive taken in conjunc- to those certified by the national tion with that article overrides the right to diploma. That assessment of the freedom of establishment under Article 52, equivalence of the foreign diploma the case-law in that regard remains applic- must be carried out exclusively in the able. light of the level of knowledge and qualifications which its holder can be assumed to possess in the light of that 19 — Paragraph 23 et seq. of the judgment. diploma, having regard to the nature 20 — See above, paragraph 23. and duration of the studies and prac-

19 If that comparative examination of diplomas results in the finding that the knowledge and qualifications certi- fied by the foreign diploma correspond to those required by the national pro- visions, the Member State must recog- 45. That result was confirmed in the cases nise that diploma as fulfilling the of Aguirre Borrell, 21 Haim I 22 and Arani- requirements laid down by its national tis. 23 In Haim I, in particular, the Court provisions. If, on the other hand, the held that account must be taken of Mr comparison reveals that the knowledge Haim's professional experience, including and qualifications certified by the for- that which he had acquired as a dental eign diploma and those required by the practitioner in the social security system of national provisions correspond only another Member State, and ruled that 'it is partially, the host Member State is not permissible under Article 52 of the entitled to require the person con- Treaty for the competent authorities of a cerned to show that he has acquired Member State to refuse appointment as a the knowledge and qualifications dental practitioner of a social security which are lacking. scheme to a national of another Member State who has none of the qualifications mentioned in Article 3 of Directive 78/686/ EEC, but who has been authorised to practise, and has been practising, his pro- 20 In this regard, the competent national fession both in the first and in another authorities must assess whether the Member State, on the ground that he has knowledge acquired in the host Mem- not completed the preparatory training ber State, either during a course of period required by the legislation of the study or by way of practical experi- first State, without examining whether and, ence, is sufficient in order to prove if so, to what extent, the experience already possession of the knowledge which is established by the person concerned corre- lacking. sponds to that required by that provision.'

46. The Treaty rules on freedom of estab- ences in national requirements concerning lishment apply to a person in Dr Hocsman's qualifications. 25 position by virtue of his being, at the material time, a national of one Member State seeking to pursue his profession, for which he possesses qualifications, in another Member State. Those rules require there to be no restriction on such a person's 49. It is necessary, therefore, for the Mem- freedom of establishment. ber State in which authorisation to practise is sought to take account of all the factors on the basis of which the person in question has been able to pursue his profession in the Community. In the present case, those factors include Dr Hocsman's basic medical qualification (recognised by Spain), his specialist qualification and his long practi- 47. The fact that Dr Hocsman has since cal experience. Moreover, they include (and acquired French nationality, either in addi- here there is an analogy with the cases of tion to or in place of his Spanish nation- Haim and Fernández de Bobadilla 26) ality, is of no significance here. The Court experience in the Member State whose has repeatedly held that Member States authorisation is sought, namely Dr Hocs- may not refuse to grant the benefit of man's employment as a urologist in French Community law to those of their nationals hospitals apparently without interruption who have exercised their right to freedom from 1990 to 1997. of movement and subsequently returned to their State of origin. 2 4The entitlement obviously applies a fortiori in the case of a Community national who has acquired the nationality of the host Member State dur- ing the course of his residence there. 50. It follows further from the case-law that, when comparing the knowledge and qualifications of a Community national with those required by the national provi- sions, the national authorities must act in accordance with a procedure which respects the requirements of Community law concerning the effective protection of 48. It is clear, furthermore, that the Treaty the fundamental freedoms conferred by the provisions are intended to eliminate not Treaty on Community nationals. The per- only discrimination on grounds of nation- son concerned must be able to ascertain the ality, but also obstacles to freedom of reasons for any decision taken by those movement which may derive from differ- authorities in connection with that compar- ison and any such decision must be capable of being made the subject of judicial 24 — See, for example, Case C-19/92 KrausvLand Baden- Württemberg [1993] ECR I-1663, paragraphs 15 to 17 of the judgment, and, most recently, Case C-234/97 Fernán- dez de Bobadilla v Museo del Prado, judgment of 8 July 25 — See, for example, the judgment in Haim I, paragraph 26. 1999, ECR I-4773, at paragraph 30. 26 — Cited in notes 9 and 24, respectively.

The linguistic question 52. If, however, having carried out their assessment, the French authorities were to consider that Dr Hocsman's qualifications did not fully correspond to those required for practice as a urologist in France, then they should, as envisaged in paragraph 19 of the Court's judgment in Vlassopoulou, give him the opportunity to show that he 54. In connection with that last considera- has acquired the knowledge and qualifica- tion, I turn finally to an ancillary aspect of tions which are lacking. this case raised not by the national court but by Dr Hocsman, who claims that he would find it very difficult to sit an examination in general medicine in French. It is, however, an aspect which touches upon questions of possible discrimina- tion 28 or undue restriction on freedom of 53. In circumstances such as the present, establishment. where a person possesses verifiable qualifi- cations and experience — in particular qualifications and experience acquired in 28 — In Case C-379/87 Groener v Minister for Education and City of Dublin Vocational Education Committee [1989] ECR 3967 (at paragraph 19 of the judgment), the Court held, in relation to factual circumstances rather different from those in the present case, that linguistic requirements 27 — Case 222/86 Unectef v Heylens [1987] ECR 4097, 'must not in any circumstances be disproportionate in paragraph 17 of the judgment; Vlassopoulou, cited in relation to the aim pursued and the manner in which they note 16, paragraphs 19 and 22; Aguirre Borrell, cited in are applied must not bring about discrimination against note 17, paragraphs 14 and 15. nationals of other Member States'.

57. However, it should be specified that any test or examination which proved necessary might be discriminatory or dis- proportionate if it required any linguistic performance (such as essay-writing) not normally part of a doctor's work. The Court has not been informed what linguis- tic criteria Dr Hocsman may be required by 56. I am, most importantly, in full agree- the French authorities to fulfil, but there is ment with the view that any assessment of a suggestion in Article L.356(2) of the the linguistic abilities of the person con- French Code de la Santé Publique (Public cerned must comply with the principle of Health Code) that a test referred to as proportionality. 3 1Advocate General Mis- 'composition française' may in some cir- cho stresses two aspects which may legiti- cumstances be imposed. In the case of all mately be taken into account: the ability to tests or examinations imposed on a person communicate with patients and the ability in Dr Hocsman's position, it would be for to cope with the administrative work the national authorities and courts (with entailed by the social security system. the possibility, if necessary, of recourse to Whilst the latter is an aspect of specific this Court) to assess whether the criteria relevance to the Haim II case, I think it is tested were proportionate and appropriate. one which no medical practitioner in the Where a person has in fact already been practising in the host Member State for a number of years without displaying any 29 — Case C-424/97 Haim v Kassenzahnärztliche Vereinigung linguistic inadequacy, a language test on the Nordrhein. sole basis of which he could be disqualified 30 — Delivered on 19 May 1999. See in particular paragraphs might well infringe the principle of propor- 81 to 121 of the Opinion. 31 — Paragraph 98 of the Opinion. tionality.

If, on the basis of the assessment made, authorisation is refused, that refusal must be in a form which clearly indicates the reasons on which it is based and is capable of being made the subject of judicial proceedings in which its legality under Community law can be reviewed.

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