C-110/01

4. The legislation presently in force is 2. It involves a Belgian national who, after Directive 93/16 ('the Directive'), which is six years of medical training in Algeria, was largely a consolidation of three previous admitted to the seventh year of medical measures dealing separately with the studies in a Belgian university which mutual recognition of medical qualifi- awarded her a basic medical diploma at cations 3 and with minimum training stan- the end of that year and a specific diploma dards required for entitlement to practise in general medical practice after two medicine. 4 It applies (Title I) to medical further years of training. She now wishes practitioners who are nationals of Member to enrol as a medical practitioner in France, but the French authorities do not consider that her qualification has to be recognised 3 — Council Directive 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other under Council Directive 93/16. 2 evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, OJ 1975 L 167, p. 1. 4 — Council Directive 75/363/EEC of 16 June 1975 concerning 1 — Original language: English. the coordination of provisions laid down by law, regulation 2 — Council Directive 93/16/EEC of 5 April 1993 to facilitate or administrative action in respect of activities of doctors, the free movement of doctors and the mutual recognition of OJ 1975 L 167, p. 14, and Council Directive 86/457/EEC of their diplomas, certificates and other evidence of formal 15 September 1986 on specific training in general medical qualifications, OJ 1993 L 165, p. 1. practice, OJ 1986 L 267, p. 26.

5. Thus Article 2 provides: 'Each Member State shall recognise the diplomas, certifi- cates and other evidence of formal qualifi- cations awarded to nationals of Member 8. Article 22 provides: 'In the event of States by the other Member States in justified doubts, the host Member State accordance with Article 23 and which are may require of the competent authorities of listed in Article 3, by giving such qualifi- another Member State confirmation of the cations, as far as the right to take up and authenticity of the diplomas, certificates pursue the activities of a doctor is con- and other evidence of formal qualifications cerned, the same effect in its territory as issued in that other Member State and those which the Member State itself referred to in [inter alia, Article 3] and also awards.' confirmation of the fact that the person concerned has fulfilled all the training requirements laid down in Title III.'

6. The list in Article 3 includes the Belgian 'Wettelijk diploma van doctor in de genees-, heel- en verloskunde'. 9. In Title III, Article 23(1) provides that Member States are to require persons wishing to take up and pursue a medical 5 — This point is explicitly stated — though, curiously, only with reference to specialist qualifications — in the 14th profession to hold one of the qualifications recital in the preamble. referred to in Article 3 'which guarantees I - 6242

TENNAH-DUREZ

that during his complete training period the 10. Article 23(2) stipulates that a 'complete person concerned has acquired: period of medical training of this kind must comprise at least a six-year course or 5 500 hours of theoretical and practical instruc- tion given in a university or under the s u p e r v i s i o n of a u n i v e r s i t y ' and Article 23(3) requires candidates for such training to hold a qualification which (a) adequate knowledge of the sciences on entitles them to be admitted 'to the univer- which medicine is based and a good sities of a Member State for the course of understanding of the scientific methods study concerned'. including the principles of measuring biological functions, the evaluation of scientifically established facts and the analysis of data;

'Member States shall examine diplomas, certificates and other evidence of formal qualifications in the field covered by this Directive obtained by the holder outside 15. Directive 93/16 is one of a series of the European Union in cases where those 'sectoral' directives laying down specific diplomas, certificates and other evidence of rules for mutual recognition of qualifi- formal qualifications have been recognised cations in certain professions. There is also in a Member State, as well as of training a general system of recognition, governed undergone and/or professional experience in particular by Directives 89/48 and gained in a Member State. The Member 92/51, 9neither of which applies to pro- State shall give its decision within three fessions having their own specific direc- months of the date on which the applicant tives. However, it may be noted that the submits his application together with full terms 'diploma' and 'certificate' as defined supporting documentation.' 7 therein refer essentially to evidence of qualifications awarded by the authorities of a Member State attesting to the com- pletion of education or professional train- ing and entitling the holder to take up or pursue a regulated profession in that 14. The Commission appended a statement Member State, to Directive 2001/19, pointing out that the question of recognition of non-Community qualifications concerned a fairly small number of Community nationals but had already been discussed within the commit- tees of representatives of the relevant 'provided that the education and training 6 — Directive 2001/19/EC of the European Parliament and of attested by this evidence was received the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 8 — In Case C-238/98 Hocsman [2000] ECR I-6623 (see 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, paragraph 18 below). At the hearing in that case, in 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and apparent contradiction to the statement appended to 93/16/EEC concerning the professions of nurse responsible Directive 2001/19, the Commission stated that it had for general care, dental practitioner, veterinary surgeon, received numerous complaints from professionals in Dr midwife, architect, pharmacist and doctor, OJ 2001 L 206, Hocsman's position in different Member States. p. 1. It appears that no Member States have yet notified the Commission of any implementing measures adopted to 9 — Council Directive 89/48/EEC of 21 December 1988 on a comply with Directive 2001/19. general system for the recognition of higher-education diplomas awarded on completion of professional education 7 — It is clear from recital 6 in the preamble that the intro- and training of at least three years' duration, OJ 1989 L 19, duction of this provision is intended to bring the Directive p. XC; Council Directive 92/51/EEC of 18 June 1992 on a into line with the Court's case-law in Case C-319/92 Haim second general system for the recognition of professional [1994] ECR I-425 and Case C-154/93 Tawil-Albertim education and training to supplement Directive 89/48/EEC, [1994] ECR I-451 (see paragraph 18 below). OJ 1992 L 209, p. 25.

16. Much more recently — shortly after the hearing in the present case — the The Court's case-law Commission presented a draft directive 11 intended to consolidate and simplify the provisions both of the general system and of all the various sectoral directives, and it may be interesting to note some of the proposed provisions. 18. The question of recognition in one Member State of non-Community qualifi- cations already recognised in another Member State, in professions covered by a sectoral directive, has been considered by the Court principally in Haim, 13 Tawil- Albertini 14 and Hocsman. 15 Haim and 17. Article 2(2), for example, would allow Tawil-Albertini concerned the dental pro- each Member State to permit holders of fession, governed by a separate though non-Community qualifications to perform similar directive, whereas Hocsman, like regulated professional activities on its ter- the present case, concerned the medical ritory in accordance with its rules, provided profession, governed by Directive 93/16. that, where minimum training conditions are laid down at Community level (as is the case for doctors), such initial recognition respects those minimum conditions. Article 3(1)(c) defines 'evidence of formal qualifications' as 'diplomas, certificates 19. The rulings in all three judgments were and other evidence issued by an authority essentially to the effect that a Community in a Member State and certifying successful national may not rely — failing any spe-

10 — Article 1(a) and 1(b) of Directive 92/51; Article 1(a) of 12 — Emphasis added. Directive 89/48 contains substantially identical provisions. 13 — Cited in note 7 above. 11 — Proposal for a Directive of the European Parliament and of the Council on the recognition of professional qualifi- 14 — Cited in note 7 above. cations (COM(2002)119 final of 7 March 2002). 15 — Cited above in note 8.

22. In 1995 she was awarded the 'academ- ische graad van arts' which, although it does not bear the title mentioned in Article 3 of the Directive, is the diploma The facts and the main proceedings now awarded by Flemish universities for the purposes of that provision. It was said at the hearing that the change of name, after the adoption of the Directive, was notified to the Commission and to the authorities of the other Member States, in 20. Dr Malika Tennah-Durez, originally of particular the Conseil National de l'Ordre Algerian nationality, apparently received des Médecins (Council of the national her secondary education near Lille in the medical association, 'the Conseil National') north of France, then studied medicine for in France. six years in Algeria, obtaining a doctorate in medicine in 1989. The last year of that training appears to have been spent as a junior hospital doctor in the Lille area. She continued working in a similar capacity in the same area until 1993, when she married 23. Dr Tennah-Durez was enrolled as a a Belgian national (thereby acquiring Bel- medical practitioner in West Flanders on 25 October 1995. Over the following two

16 — See in particular Hocsman, paragraphs 35 and 56 of the judgment. 17 — Moniteur Belge of 4 July 1991.

I - 6246

TENNAH-DUREZ

years, she continued to study at Ghent and diploma as a general practitioner was in was awarded a specific diploma in general accordance with the Directive. medical practice ('academische graad van huisarts') in 1997. She was authorised to practise as a general medical practitioner by ministerial decree of 10 February 1998.

25. In March 1998, Dr Tennah-Durez, wishing to return to the Lille area and practise there, applied to be enrolled on the 27. In those somewhat confused circum- local medical register. She was registered stances, the local medical association with- on 10 September 1998 on the basis of her drew its decision to register Dr Tennah- Belgian diplomas and of a certificate — Durez, only to have that withdrawal requested by the French authorities because annulled by the regional association. But the designation of her basic diploma was that latter decision was itself overturned on not as listed in Article 3 — from the 28 April 1999 by the disciplinary section of Belgian Ministry of Health attesting that the Conseil National, essentially on the she possessed the statutory Belgian diploma ground that Dr Tennah-Durez had not for a medical doctor and that her specific completed a sufficient number of hours of study in Belgium to satisfy the requirements of Article 23 of the Directive, and that 18 — Case C-93/97 [1998] ECR I-4837. under Article 23(5) the recognition in

I - 6247

OPINION OF MR JACOBS — CASE C-110/01

'(i) Are the provisions of Article 23(2) of 29. Written observations have been sub- Council Directive 93/16/EEC of 5 April mitted by Dr Tennah-Durez, the Conseil 1993 relating to the period of medical National, the Austrian, Belgian, French and training that a doctor who is a national Italian Governments and the Commission. of a Member State must have com- The United Kingdom Government pres- pleted, comprising at least a six-year ented oral argument at the hearing, as did course or 5 500 hours of theoretical those who submitted written observations, and practical instruction given in a except the Austrian and Italian Govern- university or under the supervision of a ments. university, to be understood as mean- ing training completed, in its entirety, only in a university of a Member State of the Community or under the super- vision of such a university, or do they allow all or part of any training received in a third country to be taken into account? The first question

30. It is clear from Article 23(5) that a (ii) Are the national authorities bound by person who holds a non-Community basic the certificate provided, pursuant to medical diploma which has been recog- Article 9(5) of the directive, by the nised in one Member State cannot rely on competent authorities of the Member the Directive as it stands in order to obtain State in which the diploma submitted automatic recognition in other Member by the person concerned was awarded, States. That was Dr Hocsman's situation, which states that the diploma is treated but Dr Tennah-Durez's case is different. as one of the qualifications or desig- Her Algerian basic medical diploma was I - 6248

31. Nor is it disputed that Dr Tennah- Durez was awarded that diploma after completing at least the number of hours and years of medical training required by 33. Those arguments are not unreasonable, Article 23(2) of the Directive, or that her and might be supported by the wording of training was received in or under the Article 23. Paragraph 2 of that provision supervision of a university. Moreover, requires the relevant instruction to be given although the point has not been discussed, in or under the supervision of 'a university', it is perhaps unlikely that her training failed with no further specification, while para- to provide her with the knowledge and graph 3 requires candidates for medical experience outlined in Article 23(1). 19 The training to hold a qualification entitling possible stumbling-block is the fact that six them to admission to 'the universities of a of her seven years of training prior to the Member State'. If, in Article 23(2), the award of her basic diploma took place in or legislature had meant 'a university of a under the supervision of a university in a Member State', might it not have been non-member country. 20 expected to say so?

32. Dr Tennah-Durez has stressed that, in addition to having her knowledge and experience accepted by the Belgian auth- orities as exempting her from the first six years of training, she passed the same final examination as those who had studied 34. However, it is important to recognise entirely in Belgium and was thus demon- that an essential feature of the Directive is strably of the same level as her colleagues that automatic mutual recognition of diplo- mas goes hand-in-hand with coordination of the provisions governing access to the 19 — See paragraph 9 above. medical profession, including training 20 — Although the sixth year appears to have been certified requirements, and is based on mutual trust by — and may thus perhaps be considered to have taken place under the supervision of — the University of Lille II, as to the comparable standard of qualifi- in France. cations throughout the Community.

36. If the mutual trust in question is between Member States and is based pri- marily on training then it would seem to follow that it must be based on training in 38. But a significant feature of Dr Tennah- the Community — instruction given in or Durez's situation is that part of her training under the supervision of a university of a was acquired in or under the supervision of Member State. The first recital in the a university in a Member State. Can a preamble to Directive 75/363, 21 a precur- diploma awarded by a Member State in sor of the present Directive, noted more- such circumstances qualify for automatic over that it was 'the comparable nature of recognition and, if so, what proportion of training courses in the Member States' the training must have taken place in the which enabled coordination to be confined to 'the requirement that minimum stan- dards be observed', and the element of 22 — See Tawil-Albertini, cited above in note 7, paragraphs 11 mutual trust in training given in a Member and 12 of the judgment. State has been stressed by the Court in 23 — See Case C-131/97 Carbonari and Others [1999] ECR I-1103, paragraphs 38 to 43 of the judgment. 24 — I am assuming for the moment instruction given entirely within or entirely outside the Community — I shall consider the 'mixed' situation below (paragraph 38 et 21 — Cited above in note 4. seq.).

I - 6250

TENNAH-DUREZ

Community? A number of submissions would obtain a diploma that would have to have been made to the Court on that be recognised. question.

42. There are however two important 40. The Belgian Government, on the other points to be made in that regard. hand, whilst accepting that Dr Tennah- Durez's basic diploma was not awarded in accordance with Article 23 of the Directive because her training was acquired mainly outside the Community, pointed to a poss- ible anomaly that might ensue from a strict 43. The first is that the words 'under the rule requiring more than half of the train- supervision of' allow a certain latitude and ing to be acquired in the Community: a in particular allow a Community university candidate with a certain level of knowledge to send its students for part of their training and experience acquired outside the Com- in an establishment with which it has links munity might qualify for admission into the in a non-member country, without thereby fifth of seven years of study in a Member disqualifying the diploma awarded from State with the result that his or her diploma automatic recognition under the Directive, could not qualify for automatic recogni- tion, whereas a candidate with a lower level, admitted only into the fourth year, 25 — See paragraph 15 above.

I - 6251

OPINION OF MR JACOBS — CASE C-110/01

44. The second is that Community legis- lation is evolving in the field of mutual recognition of qualifications in general and that as it evolves a tendency can be seen towards greater acceptance of training outside the Community as an element in a qualification worthy of automatic recogni- tion throughout the Community. Whilst 46. I therefore take the view that as the law the first stages of coordination and recog- stands — and without casting the slightest nition may have been based on a more doubt on the quality of medical training in limited degree of mutual trust between non-member countries, which will often be Member States, circumstances seem to be of a standard equal to and in some cases higher than that dispensed in Member States — the mutual trust on which the 26 — In at least the majority of the language versions of the Directive, the term 'supervision' and its equivalents — 'Aufsicht', 'orientaçao', 'surveillance', 'tilsyn', 'toezicht' etc. — imply active control rather than passive verifi- 27 — See paragraph 13 above. cation. 28 — See paragraphs 16 and 17 above.

I - 6252

TENNAH-DUREZ

Directive is based requires Article 23(2) to 49. In accordance with Article 9(5), if a be interpreted as referring solely to theor- qualification is not listed in Article 3, it etical and practical instruction given in, or must still be recognised if the issuing under the supervision of, a university in a Member State certifies it to have been Member State. awarded following training in accordance with Article 23. 30 Conversely, if no such certificate is issued, there is no requirement for automatic recognition in the context of the Directive.

30 — It is true that Article 9, which is entitled 'Existing circumstances', deals largely with problems raised by qualifications and/or training acquired or commenced before the adoption of the Directive. Thus, Article 9(5) might be thought, as the United Kingdom suggested at the hearing, to cover only qualifications no longer awarded 48. The role played by Articles 9(5) and 22 under the same designation but none the less attesting to training in accordance with Article 23. There is however within that overall scheme seems clear. nothing in its wording to limit it in that way, and it seems reasonable and desirable that it should also cover changes in designation after the adoption of the Directive. 31 — Articles 2, 3 and 23 apply to basic qualifications in 29 — See also Hocsman, cited above in note 8, paragraph 33 of medicine. Parallel provisions to which the same consider- the judgment, Case C-16/99 Erpelding [2000] ECR I-6821, ations apply are to be found for specialised qualifications paragraph 23, and, with regard to the previous directives, common to all Member States in Articles 4, 5, 24 to 26 and Case C-277/93 Commission v Spain [1994] ECR I-5515, 29 and for specialised qualifications peculiar to two or paragraphs 13 and 14. more Member States in Articles 6, 7, 24, 25, 27 and 29.

I - 6253

OPINION OF MR JACOBS — CASE C-110/01

suspicions derived from, say, the appli- of full-time training in Belgium immedi- cant's original nationality; it does not ately prior to the award of her diploma, so entitle national authorities to indulge in that a request under Article 22 was appro- delaying tactics or fishing expeditions, priate. The precise situation was in any conduct which would run completely event unclear without closer scrutiny. counter to the spirit of the Directive.

54. However, it is not enough to note that, as I have concluded in the context of the national court's first question, in the light of such an examination Dr Tennah-Durez's Belgian diploma does not qualify for auto- matic, compulsory recognition under the Directive. It is also necessary, under 52. There was thus no certificate issued Article 43 EC as interpreted by the Court under Article 9(5) stating that the diploma and in accordance with the new Article 42c was awarded following training in accord- of the Directive, whenever a Community ance with Article 23, although such a national holding medical qualifications certificate, had it been issued, would have obtained outside the Community wishes been binding on the French authorities. In to practise medicine in a Member State addition, those authorities may have had other than his or her home State, to carry real grounds for questioning whether Dr out a further individual and objective Tennah-Durez had completed seven years assessment of that person's situation. I - 6254

TENNAH-DUREZ

56. Thus Dr Tennah-Durez's Belgian diploma, although it does not qualify for automatic, compulsory recognition under the Directive, must be taken into account by the French authorities, together with her Algerian diploma and the training on which it was based including her final year of training in France, her subsequent profes- 58. If that were to be the finding, however, sional activity in France over the following an adequately-reasoned decision, against three or four years, her two years of specific which an appeal must lie, would have to be training in general medical practice in given. 3 4 Moreover, as from 1 January Belgium and the diploma awarded to her 2003, such a decision must be given within as a result, and any other professional three months in accordance with the new experience she may have gained in Belgium Article 42c of the Directive. That latter or elsewhere. Only if the knowledge and 33 — See also Hocsman, paragraphs 35 and 36 of the judgment. 34 — See paragraph 50 of my Opinion in Hocsman, and the 32 — Cited above in note 8, paragraph 40 of the judgment. case-law cited there.

I - 6255

OPINION OF MR JACOBS — CASE C-110/01

requirement would appear to have the entitled to postpone a decision based on an consequence that, if faced with a situation assessment of all the applicant's qualifi- of uncertainty as to the status of a qualifi- cations until after the uncertainty has been cation for the purposes of automatic rec- resolved, unless both steps can be com- ognition, national authorities will not be pleted within the three months.

— Where a Community national holding a medical qualification which has been awarded in a Member State and is listed in Directive 93/16, but does not attest to training acquired entirely in accordance with Article 23 thereof, applies for authorisation to practise medicine in another Member State, the competent authorities of the latter must take into consideration all the diplomas, certificates, other evidence of formal qualifications and relevant experience of the person concerned, by comparing the knowledge and abilities thereby evidenced with those required by the national rules, and may not refuse authorisation unless they fall short of those requirements and the applicant cannot show that he has acquired the knowledge and abilities not attested to.

I - 6257