C-16/99

ERPELDING

OPINION OF ADVOCATE GENERAL LÉGER delivered on 13 January 2000 *

1. Dr Erpelding, a Luxembourg national, is I — Directive 93/16 a doctor trained in Austria. He returned to Luxembourg to practise as a specialist in internal medicine, with the consent of the competent national authority. 3. Council Directive 93/16/EEC of 5 April 1993 is intended to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifica- tions. 1

In spite of his qualification as a specialist in general internal medicine (branch: cardiol- ogy) obtained in Austria, the Minister of 4. Article 6 of the Directive, which applies Health in Luxembourg has not allowed him to diplomas, certificates and other evidence to use the professional title of specialist in of formal qualifications in specialised medi- cardiology, relying on the fact that cardiol- cine peculiar to two or more Member ogy does not constitute a specialisation States, provides as follows: recognised by the Austrian authorities.

'Each Member State with provisions on this matter laid down by law, regulation or administrative action shall recognise the diplomas, certificates and other evidence of formal qualifications in specialised medi- 2. The dispute between the parties to the cine awarded to nationals of Member main proceedings raises the question of the States by the other Member States in conditions under which a professional title accordance with Articles 24, 25, 27 and obtained in one Member State will be 29 and which are listed in Article 7, by recognised in another Member State, and giving such qualifications the same effect in the conditions under which an academic its territory as those which the Member title obtained in that context may be used. State itself awards.'

' 1 . The diplomas, certificates and other evidence of formal qualifications referred to in Article 6 shall be those which, having been awarded by the competent authorities or bodies listed in Article 5(2), correspond for the purposes of the specialised training in question to the designations listed in paragraph 2 of this Article in respect of those Member States which give such 7. Under Chapter V, headed 'Use of aca- training. demic title', Article 10(1) of the Directive provides:

2. The designations currently used in the Member States which correspond to the 'Without prejudice to Article 19, host Member States shall ensure that the nation- als of Member States who fulfil the condi- 2 — Fourteenth recita] to the preamble. tions laid down in Articles 2, 4, 6 and 9 3 — Ibidem. have the right to use the lawful academic 4 — See the Act concerning the conditions of accession of the title or, where appropriate, the abbrevia- Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties tion thereof, of their Member State of on which the European Union is founded, (OJ 1994 C 241, origin or of the Member State from which p. 21, and OJ 1995 L 1, p. 1), and in particular, Annex I, XI, D, III, (d). they come, in the languages of that State.

I - 6824

ERPELDING

Host Member States may require this title II — Facts and procedure in the main to be followed by the name and location of proceedings the establishment or examining board which awarded it.'

9. On 30 March 1985 Dr Erpelding was awarded the Austrian diploma of 'Doktor der gesamten Heilkunde' (diploma of doc- 8. Under Chapter VI, headed 'Provisions to tor of medicine) by the University of facilitate the effective exercise of the right Innsbruck. On 11 April 1986 this diploma of establishment and freedom to provide was approved by the Minister of National services in respect of the activities of Education of Luxembourg. doctors', Article 19 states as follows:

The first paragraph shall also apply to the 11. On 11 May 1993 the Österreichische use of professional titles of specialist doc- Ärztekammer awarded Dr Erpelding the tors by those who fulfil the conditions laid diploma of 'Facharzt für Innere Medizin — down in Articles 4, 6 and 9(2), (4), (5) and Teilgebiet Kardiologie' (Specialist in Gen- (6).' 5 eral (Internal) Medicine — Branch: Cardi- ology). By decision of 9 July 1993 the Luxembourg Minister for Health author- 5 — Article 4 is equivalent, for the mutual recognition of formal ised Dr Erpelding to use, in addition to his qualifications in specialist medicine common to all the professional title of specialist in general Member States, to Article 6, which governs the mutual recognition of formal qualifications peculiar to two or more (internal) medicine, his academic title in the Member States. Article 9 governs acquired rights of doctors holding diplomas, certificates and other evidence of formal language of the State where he obtained it, qualifications awarded by the Member States and approving namely 'Facharzt für Innere Medizin — training which commenced before the implementation of the Directive (eighth recital to the preamble). Teilgebiet Kardiologie'.

I - 6825

OPINION OF MR LÉGER — CASE C-16/99

15. On 31 March 1998 the Minister for Health appealed against that judgment to the Cour Administrative (Higher Adminis- trative Court, Luxembourg). If not,

I - 6826

ERPELDING

(2) Does Article 10 of Directive 93/16/EEC question asked, he submits that only use of confer on holders of academic titles the latter title is at issue in this case. 6 acquired in another Member State merely the option of using their academic title or, where appropriate, the abbreviation thereof, or, conversely, should the text of the directive be interpreted to the effect that only the academic title in the language of 20. This position does not seem to me to be the country in which it was awarded may sustainable. be authorised, to the exclusion of equiva- lent titles formulated in the language and according to the terminology of the host State?'

21. Firstly, the referring court has not confined its question to the use of academic titles. It is also concerned with the use of professional titles, as Dr Erpelding himself recognises in citing Article 19 of the Direc- tive, and in pointing out that the Tribunal IV — The first question Administratif, whose judgment was appealed to the referring court, took the view that he was entitled to use the professional title of cardiologist.

Initial observations

23. It should also be noted that, according 25. The latter provision, cited in Arti- to the same case-law, Article 177 of the cle 19, concerns the rights acquired by Treaty (now Article 234 EC), which is doctors prior to the implementation of the based on a clear separation of functions Directive. 1 1It provides, in particular, that between national courts and this Court, each Member State shall recognise as being does not allow this Court to review the sufficient proof, in the case of nationals of reasons for which a reference is made. the Member States whose specialist titles Consequently, a request from a national do not conform to those designations set court may be rejected only if it is quite out for that State in Article 7, the qualifi- obvious that the interpretation of Commu- cations awarded by those Member States nity law sought by that court bears no accompanied by a certificate issued by the relation to the actual facts of the case or to competent authorities. The certificate shall the subject-matter of the main action. 8 state that these qualifications were awar- ded following training in accordance with the articles referred to in Article 6 and are treated by the Member State which awar- ded them as the qualifications or designa- tions set out in Article 7.

I - 6828

ERPELDING

mulated imprecisely, to extract from all the for by Article 9, for the recognition of information provided by the national court acquired rights to practise as a specialist. and from the documents in the main proceedings the points of Community law which require interpretation, having regard to the nature of the dispute. 13

30. It appears from the statement of facts and procedure in the main proceedings, as set out in the order for reference, that the determination of the dispute before the 28. In the present case, without ruling on national court depends on whether the fact the Italian Government's interpretation of that a qualification obtained in another the problem and the question of the Member State does not appear on the list of applicability of Article 9, it is appropriate training courses set out in Article 7 justifies to recall that the wording of the first the refusal of the competent authorities of question referred mentions Articles 19 and the host Member State to authorise the use 7. This suggests that the referring court of the corresponding professional title. 14 seeks clarification of the interpretation of Article 19, in so far as it refers to Article 6, which itself refers to Article 7, rather than of Article 9, as to which nothing in the file suggests that it could have formed the basis of any application by Mr Erpelding.

I - 6829

OPINION OF MR LÉGER — CASE C-16/99

The right to refuse the use of professional Under the terms of Article 6, the holder titles of such a qualification is entitled to mutual recognition in the Member States of the Community where such specialised training exists. Cardiology 32. As the Commission pointed out, the is one such training listed in Arti- Directive distinguishes the following types cle 7(2). of specialist qualification:

— specialist qualifications recognised as 33. Under the heading 'cardiology', for acquired rights by virtue of Article 9. Luxembourg, is given the designation 'car- In accordance with the eighth recital to diologie et angiologie'. By contrast there is the preamble it is appropriate '... to no such entry for Austria. make provision for measures relating to acquired rights with regard to diplo- mas, certificates and other evidence of formal qualifications in medicine issued by the Member State· and approving training which had com- 34. It follows from this that Luxembourg menced before the implementation of awards a qualification attesting to a spe- this directive'; cialised training in the field of cardiology and angiology, whilst Austria, which does not provide this type of training, has no corresponding qualification.

— specialist qualifications common to all Member States awarded following spe- cialised training, the designation of which in each Member State appears in Article 5(3) of the Directive. Under 35. Accordingly, Luxembourg is not the terms of Article 4, the holder of required to give the same effect in its such a qualification is entitled to territory to a specialist qualification awar- mutual recognition in the whole of ded by Austria in the specific field of the Community; cardiology as to the national qualification awarded following training, in Luxem- bourg, in the field of cardiology and angiology.

40. Since it has its own provisions on the 37. It follows from Article 19, second matter laid down by law, regulation or paragraph, that the use of the professional administrative action, within the meaning title of specialist depends upon the specia- of Article 6 of the Directive, a host Mem- list's compliance with the conditions set out ber State may thus not be required to treat in Article 6, which refers to the training as equivalent to its own professional qua- conditions laid down in Articles 24, 25, 27 lifications one awarded by another Mem- and 29 and to the possession of a qualifica- ber State, without having the assurance that tion awarded following a course of training the minimum conditions of training set out listed in Article 7(2). The reference to the in Articles 24, 25, 27 and 29, cited in training conditions, upon which depend Article 6, have been complied with. both the recognition of qualifications obtained in another Member State, thereby accepted as having effect in the territory of the host Member State, and the right to use the professional title of the latter State, demonstrates that the right to practise as a 41. As its title clearly shows, the purpose of specialist and the right to use the corre- the Directive is to facilitate the free move- sponding professional title are closely ment of doctors and the mutual recognition linked. of their diplomas, certificates and other evidence of formal qualifications, which means that doctors trained in one Member State must be able to avail themselves of the freedom of establishment and freedom to provide services in another Member State.

facilitate the effective exercise of these 45. According to the Commission, which freedoms, such as those permitting the has not been contradicted on this point, the recognition by Member States of qualifica- relevant Austrian legislation (the Österrei- tions awarded by other Member States. 16 chische Ausbildungsordnung) does not recognise the profession of specialist in cardiology. This discipline is an additional specialisation linked to the basic specialisa- tion of internal medicine. The Commission has explained that the absence, in the Directive, of any mention of cardiology 42. However, more so than for other activ- for Austria arises because, in that State, the ities or professions, the free movement of specialised training in cardiology does not doctors cannot be achieved without safe- strictly comply with the minimum training guards to ensure that training and experi- conditions set out in Article 27, namely ence acquired elsewhere are adequate to four years of training in the relevant satisfy the demands of public health. 17 specialisation. Cardiology, which is a spe- cialisation in addition to the basic five-year training for internal medicine, is subject to a training period of only two years. 18

I - 6832

ERPELDING

cardiology practice for several years' is a the grant of such an application following a question of fact which need not concern the comparison of skills. Court, all the more so since it is contra- dicted by one of the other parties to the main proceedings. It appears from the order for reference that, according to the letter of 25 April 1997, the Minister for Health refused Dr Erpelding the right to practise medicine as a cardiologist. 20 Therefore attention should be confined to the facts as found by the referring court. The extent of Member States' obligations to compare knowledge and ability

21 — Case C-340/89 [1991] ECR I-2357. 20 — Page 3. 22 — Points 4 and 5 of the written observations.

I - 6833

OPINION OF MR LÉGER — CASE C-16/99

The Finnish Government argues that this 54. After noting that '... in the absence of duty arises from the Treaty rules on free- harmonisation of the conditions of access dom of establishment as well as from the to a particular occupation the Member case-law of the Court, in particular the States are entitled to lay down the knowl- Vlassopoulou decision referred to above. edge and qualifications needed in order to pursue it and to require the production of a diploma certifying that the holder has the relevant knowledge and qualifications', 23 the Court decided that, even if applied without any discrimination on the basis of nationality, national requirements concern- ing qualifications may have the effect of hindering freedom of establishment if the 51. It will be recalled that, in that case, the national rules in question take no account applicant in the main proceedings, a Greek of the knowledge and qualifications already lawyer enrolled at the Athens Bar, applied acquired by the person concerned in to be admitted to the Mannheim Bar in another Member State. 24 Germany. Her application was refused on the ground that she did not have the qualifications for holding judicial office necessary to be admitted to the legal profession. 55. The Court inferred from this that '... a Member State which receives a request to admit a person to a profession to which access, under national law, depends upon the possession of a diploma or a profes- sional qualification must take into consid- eration the diplomas, certificates and other evidence of qualifications which the person 52. In addition to her Greek diplomas, Mrs concerned has acquired in order to exercise Vlassopoulou held a doctorate in law from the same profession in another Member a German university, and had worked for State by making a comparison between the five years as a legal adviser in Germany. specialized knowledge and abilities certi- fied by those diplomas and the knowledge and qualifications required by the national rules'. 25

59. The Vlassopoulou decision, already cited, and subsequent decisions 26 were concerned with professions which were not governed by a system of mutual Moreover, as the Commission rightly recognition. pointed out at the hearing, Article 8 of the Directive already satisfies the require-

I - 6835

OPINION OF MR LÉGER — CASE C-16/99

ments of the Vlassopoulou line of author- 63. These factors argue against a duty of ity. Paragraph 2 of that article provides that Member States to consider, on the basis of host Member States, when faced with a other criteria, applications for authorisa- request from Community nationals who do tion to enter a profession subject to the not hold a specialist qualification obtained provisions of a harmonisation directive, or in the conditions laid down by Article 6, to practise such a profession, when such must take into account, in whole or in part, applications do not comply with the con- the training periods completed by such ditions laid down by the directive. They nationals, and attested to by the award of also preclude a Member State from spon- a qualification by the competent authorities taneously acceding to such an applica- of the Member State of origin or from tion. 29 It follows that any application which the national comes, when such falling within the scope of the Directive periods correspond to those required in cannot be approved other than as laid the host Member State for the specialised down by that measure. training in question. Under Article 8(3) a period of additional training can be required by the host Member State.

V — The second question

I - 6836

ERPELDING

such a title in the language of the host the language of origin alone is justified by Member State or, in the further alternative, the fact that '... a directive on the mutual to use the equivalent title of the host recognition of diplomas does not necessa- Member State. rily imply equivalence in the training cov- ered by such diplomas'. 30

66. The answer to this question is given by 70. In other words, while the exercise of the wording of Article 10(1), read in the freedom of establishment for doctors can light of the ninth recital of the Directive. be ensured by means of the mutual recog- nition of professional qualifications, which is made possible by a minimum coordina- tion of the conditions of training, such training — and therefore the qualification which it confers — cannot, on any view, be strictly equivalent in all the Member States 67. As has been seen, Article 10(1) confers concerned. the right on nationals of Member States who satisfy the conditions of Article 6 to '... use the lawful academic title or, where appropriate, the abbreviation thereof, of the Member State of origin or of the Member State from which they come, in 71. This situation differs from that of the the languages of that State.' professional title, which confers the right to practise a profession.

74. These factors explain why an academic title can only be used in the language of the State of origin or from which the holder comes and, even more so, why the holder of 72. By contrast, the possession of an aca- a qualification is not entitled to use another demic title bears witness to the pursuit of a title, such as, for example, the equivalent particular degree course conferring knowl- qualification of the host Member State. edge and skills, which, whilst being partly harmonised, is not yet fully standardised. In these circumstances, such training cannot but be designated by its original title, otherwise different situations would be concealed by a single title, to the detriment 75. I would add that, whilst Article 10(1) of patients, and without tangible benefit in requires host Member States to guarantee terms of ensuring freedom of establish- the right of nationals of other Member ment. States to use their academic titles, provided that they fulfil the conditions laid down in Article 6, 33 it does not, in my view, prevent those same States from granting this right even though these nationals do not satisfy the conditions of training laid down by that article. 73. Courses of training must therefore be distinguished and evaluated for what they are. This requirement explains why a host Member State is entitled to require the holder of an academic title to use it '... in a suitable form to be drawn up by the host 76. As we have seen, Article 10(1) lays Member State', so as to ensure that the title down a duty on Member States, the scope of the Member State of origin or from of which is determined by the conditions which the foreign national comes is not '... which the nationals concerned must satisfy confused... with a title requiring in [the in order to be entitled to use their academic host Member State] additional training titles. On the other hand the requirements which the person concerned has not under- of freedom of establishment justify not gone...'. 31 It also explains why 'the host preventing those Member States who wish Member States may require this title to be to do so from authorising a doctor trained followed by the name and location of the

(1) Article 19 of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the recognition of their diplomas, certificates and other evidence of formal qualifications must be interpreted as not precluding the right of a Member State, in which the activity of medical specialists is subject to provisions laid down by law, to refuse to allow a

I - 6839

OPINION OF MR LÉGER — CASE C-16/99

Community national who has obtained in another Member State a specialist qualification in relation to that activity, and who intends to practise that activity in the first Member State, to use the professional title of the latter State, where the title of the Member State of origin or from which he comes does not correspond to one of the designations in Article 7 of that directive.

(2) Article 10(1) of Directive 93/16 must be interpreted as meaning that, even when he does not satisfy the conditions laid down in Article 19, a specialist who holds an academic title obtained in another Member State is authorised to use that title in a host Member State only in the language of the Member State of origin or from which he comes, thereby preventing him from using the title in the language of the host Member State, or using an equivalent academic title of that Member State.

I - 6840