Opinion of the Advocate General — ECLI:EU:C:2024:190
Date: 2024-02-29
Language of the case: French

Anonymised version 
Translation C-8/23 – 1 
Case C-8/23 
Request for a preliminary ruling 
Date lodged: 
12 January 2023 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
27 December 2022 
Applicant: 
FH 
Defendant: 
Conseil national de l’ordre des médecins 
      
[…] 
The Conseil d’État (Council of State, France) 
acting in its judicial capacity 
(Litigation Section, Fourth and First Chambers combined) 
[…] 
[…] 
Decision of 27 December 2022 
[…] 
[…] FH requests the Council of State to: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 12. 2022 – CASE C-8/23 
 
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1) annul the decision of 17 September 2021, by which the Conseil national de 
l’ordre des Médecins (National Council of the Medical Association), acting 
through a select panel, refused to enter his name on the register of the Medical 
Association, on the ground that it was adopted ultra vires; 
2) order the National Council of the Medical Association to pay the sum of 
EUR 3 000 pursuant to Article L. 761-1 of the Code de justice administrative 
(Code of Administrative Justice). 
FH submits that the [contested] decision is vitiated by an error of law because his 
German diploma as a specialised doctor in anaesthetics, referred to in Directive 
2005/36/EC of 7 September 2005 on the recognition of professional qualifications 
(OJ 2005 L 255, p. 22) falls under the system for mutual and unconditional 
recognition of professional qualifications obtained within the European Union and 
therefore allows him to pursue the profession of doctor of medicine in France. 
[…] The National Council of the Medical Association contends that the 
application should be dismissed and that FH should be ordered to pay the sum of 
EUR 3 000 pursuant to Article L. 761-1 of the Code of Administrative Justice. It 
submits that the grounds for the application are unfounded. 
[…] 
[…] [Legal bases and outline of the procedure] 
Whereas: 
1 […] [FH], a French-German national, holds a State diploma of doctor of 
medicine, awarded by the University of Monastir (Tunisia) on 18 September 
2012. By a decision of 6 November 2015, the competent German authorities 
recognised that diploma as a qualification in basic medical training and allowed 
FH to pursue the profession of doctor of medicine and, by a decision of 1 August 
2016, entered his name on the register of the Medical Association of Lower 
Saxony. On 28 January 2021, FH obtained the diploma of specialist in 
anaesthetics from the University of Hanover (Germany). On 25 March 2021, FH 
applied to the Saône-et-Loire Departmental Council of the Medical Association 
for his name to be entered on the association’s register pursuant to Article L. 
4111-1 of the Code de la santé publique (Public Health Code). By a decision of 
20 May 2021, the Departmental Council refused to enter his name on the 
association’s register. Following a decision of a select panel of the Bourgogne-
Franche-Comté Regional Council of the Medical Association on 15 July 2021, 
which in turn also rejected his application to be entered on the association’s 
register, FH brought an appeal to the National Council of the Medical Association 
which, acting through a select panel, refused, on 17 September 2021, to enter his 
name on the association’s register. FH seeks the annulment of the latter decision 
on the ground that it was adopted ultra vires. 
CONSEIL NATIONAL DE L’ORDRE DES MÉDECINS 
 
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2 On the one hand, recitals 1 and 19 of Directive 2005/36/EC provide as follows: 
‘(1) Pursuant to Article 3(1)(c) of the Treaty, the abolition, as between Member 
States, of obstacles to the free movement of persons and services is one of the 
objectives of the Community. For nationals of the Member States, this includes, in 
particular, the right to pursue a profession, in a self-employed or employed 
capacity, in a Member State other than the one in which they have obtained their 
professional qualifications. In addition, Article 47(1) of the Treaty lays down that 
directives shall be issued for the mutual recognition of diplomas, certificates and 
other evidence of formal qualifications’ and ‘(19) Freedom of movement and the 
mutual recognition of the evidence of formal qualifications of doctors … should be 
based on the fundamental principle of automatic recognition of the evidence of 
formal qualifications on the basis of coordinated minimum conditions for 
training. …’. Article 1 of that directive, entitled ‘Purpose’, states: ‘This Directive 
establishes rules according to which a Member State which makes access to or 
pursuit of a regulated profession in its territory contingent upon possession of 
specific professional qualifications … shall recognise professional qualifications 
obtained in one or more other Member States … and which allow the holder of the 
said qualifications to pursue the same profession there …’. Article 4 of the 
directive, entitled ‘Effects of recognition’, provides: ‘1. The recognition of 
professional qualifications by the host Member State allows the beneficiary to 
gain access in that Member State to the same profession as that for which he is 
qualified in the home Member State and to pursue it in the host Member State 
under the same conditions as its nationals. 2. For the purposes of this Directive, 
the profession which the applicant wishes to pursue in the host Member State is 
the same as that for which he is qualified in his home Member State if the 
activities covered are comparable.’ Under Article 21, entitled ‘Principle of 
automatic recognition’, which forms part of Chapter III [entitled] ‘Recognition on 
the basis of coordination of minimum training conditions’: ‘1. Each Member State 
shall recognise evidence of formal qualifications as doctor giving access to the 
professional activities of doctor with basic training and specialised doctor … 
listed in Annex V, points 5.1.1 [list of evidence of formal qualifications in basic 
medical training issued by the Member States], 5.1.2 [list of evidence of formal 
qualifications of specialised doctors issued by the Member States] … respectively, 
which satisfy the minimum training conditions referred to in Articles 24 [basic 
medical training] [and] 25 [specialist medical training] … respectively, and shall, 
for the purposes of access to and pursuit of the professional activities, give such 
evidence the same effect on its territory as the evidence of formal qualifications 
which it itself issues. Such evidence of formal qualifications must be issued by the 
competent bodies in the Member States and accompanied, where appropriate, by 
the certificates listed in Annex V …’. It follows from Articles 10 et seq. of the 
directive that, apart from the cases referred to in Article 21, doctors with basic 
training and specialised doctors who obtained their professional qualifications in a 
Member State and who wish to pursue their profession in another Member State 
fall under the general system for the recognition of evidence of professional 
qualifications. 
REQUEST FOR A PRELIMINARY RULING OF 27. 12. 2022 – CASE C-8/23 
 
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3 On the other hand, according to Article L. 4111-1 of the Public Health Code, 
‘nobody may pursue the profession of doctor … unless he or she is: (1) the holder 
of a diploma, certificate or other evidence of qualification referred to in Articles 
L. 4131-1, L. 4141-3 or L. 4151-5 …’. Under Article L. 4131-1 of that code, 
which was included, in particular, in order to transpose Directive 2005/36/EC, ‘the 
evidence of formal qualification required under paragraph 1 of Article L. 4111-1 
is, for the profession of doctor, one of the following: (1) French State diploma of 
doctor of medicine; … (2) if the person concerned is a national of a Member State 
of the European Union or of a State party to the Agreement on the European 
Economic Area: (a) the evidence of formal qualification as a doctor issued by one 
of those States in accordance with Community obligations and appearing on a list 
drawn up by decree of the ministers responsible for higher education and health 
[which is identical to the lists in points 5.1.1 and 5.1.2 of Annex V to the directive 
referred to in the preceding paragraph]; (b) the evidence of formal qualification as 
a doctor issued by a Member State or State party in accordance with Community 
obligations which is not included on the list referred to in (a) but which is 
accompanied by a declaration from that State certifying that it is approved as a 
qualification that complies with those obligations and regarded by the State as 
equivalent to the formal qualifications appearing on that list …’. Under 
[paragraph] II of Article L. 4111-2 of the Public Health Code, ‘the competent 
authority may also, on the advice of a committee that consists, inter alia, of 
professionals, issue individual authorisations to pursue the profession of doctor in 
the speciality concerned … to nationals of Member States of the European Union 
or of States party to the Agreement on the European Economic Area who hold 
evidence of formal qualifications issued by a third State and recognised by a 
State, other than France, that is a Member State or State party, allowing them to 
legally pursue their profession there. In the case of doctors …, this recognition 
relates to evidence of formal qualifications in both basic medical training and 
specialised medicine’. 
4 […] The competent German authorities recognised the Tunisian diploma of doctor 
of medicine held by FH as equivalent to the German formal qualification in basic 
medical training referred to in point 5.1.1 of Annex V to Directive 2005/36/EC. 
On that basis, the German authorities authorised FH to pursue the profession of 
doctor by registering him with the Medical Association of Lower Saxony by a 
decision of 1 August 2016 and also allowed him to continue his training in 
Germany, leading to the award of a formal qualification in specialist medical 
training in anaesthetics. On 28 January 2021, FH obtained from the University of 
Hanover (Germany) the diploma of specialised doctor in anaesthetics which is 
referred to in point 5.1.2 of Annex V to the directive. 
5 […] [Furthermore,] FH applied to be registered in France by having his name 
entered on the register of the Medical Association as a specialised doctor, 
qualified in anaesthetics, arguing that his diploma of specialised doctor awarded in 
Germany is subject to automatic recognition under Article 21(1) of Directive 
2005/36/EC as evidence of a formal qualification issued by a Member State of the 
European Union and referred to in point 5.1.2 of Annex V to that directive. The 
CONSEIL NATIONAL DE L’ORDRE DES MÉDECINS 
 
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select panel of the National Council of the Medical Association refused to grant 
his application on the grounds that, even though the German diploma of 
specialised doctor held by FH constitutes evidence of a formal qualification 
referred to in point 5.1.2 of Annex V to Directive 2005/36/EC and in the Arrêté du 
13 juillet 2009 fixant les listes et les conditions de reconnaissance des titres de 
formation de médecin et de médecin spécialiste délivrés par les Etats membres de 
l'Union européenne ou parties à l'accord sur l'Espace économique européen visées 
au 2° de l'article L. 4131-1 du code de la santé publique (Decree of 13 July 2009 
determining the lists and conditions for recognition of evidence of formal 
qualifications for doctors and specialised doctors awarded by Member States of 
the European Union or States party to the Agreement on the European Economic 
Area referred to in paragraph 2 of Article L. 4131-1 of the Public Health Code), it 
is not subject to automatic recognition because it was not issued in accordance 
with Community obligations, the directive providing in Article 25(4) that ‘the 
Member States shall make the issuance of evidence of specialist medical training 
contingent upon possession of evidence of basic medical training referred to in 
Annex V, point 5.1.1’. FH does not possess the evidence of formal qualifications 
in basic medical training referred to in point 5.1.1 of Annex V, since the State 
diploma of doctor of medicine he obtained in Tunisia was recognised only by the 
German authorities. 
6 […] FH, who does not purport to have three years’ experience working as a doctor 
on German territory for the purposes of Article 3(3) of Directive 2005/36/EC, 
submits that that decision infringes EU law, since the system for automatic 
recognition of evidence of formal qualifications established by Article 21 of that 
directive does not permit the competent authorities of a Member State to refuse to 
allow a specialised doctor’s qualification to be automatically recognised when that 
doctor wishes to pursue his or her profession in that Member State on the basis of 
a qualification as a specialised doctor issued in another Member State and referred 
to in point 5.1.2 of Annex V to that directive, even though that doctor does not 
hold evidence of one of the formal qualifications in basic medical training referred 
to in point 5.1.1 of Annex V, and Article 25(4) makes the issuance of evidence of 
a formal qualification as a specialised doctor contingent on possession of evidence 
of one of those formal qualifications in basic medical training. 
7 The argument set out in the preceding paragraph raises the question of whether a 
doctor who is a national of one of the Member States of the European Union and 
who holds evidence of a formal qualification as a specialised doctor issued in a 
Member State as referred to in point 5.1.2 of Annex V to Directive 2005/36/EC of 
the European Parliament and of the Council of 7 September 2005 on the 
recognition of professional qualifications may rely, in another Member State, on 
the basis of that qualification alone, on the system for the automatic recognition of 
formal qualifications set out in Article 21 of that directive, even though he or she 
holds evidence of a formal qualification in basic medical training issued by a third 
State which has been recognised only by the Member State in which he or she 
obtained the diploma as a specialised doctor and which is not among those 
referred to in point 5.1.1 of Annex V to that directive, and Article 25(4) makes the 
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issuance of evidence of a formal qualification as a specialised doctor contingent 
on possession of evidence of one of the formal qualifications in basic medical 
training referred to. That question, which is decisive to the resolution of the 
present dispute, raises a serious difficulty of interpretation of EU law. 
Consequently, it is necessary to refer it to the Court of Justice of the European 
Union under Article 267 of the Treaty on the Functioning of the European Union 
and, until the Court gives its ruling, to stay the proceedings in respect of the 
application. 
DECIDES AS FOLLOWS: 
Article 1: The proceedings on the application brought by FH are stayed until the 
Court of Justice of the European Union has given its ruling on the following 
question: 
May a doctor who is a national of one of the Member States of the European 
Union and who holds evidence of a formal qualification as a specialised doctor 
issued in a Member State as referred to in point 5.1.2 of Annex V to Directive 
2005/36/EC of the European Parliament and of the Council of 7 September 2005 
on the recognition of professional qualifications, rely, in another Member State, 
on the basis of that qualification alone, on the system for the automatic 
recognition of formal qualifications set out in Article 21 of that directive, even 
though he or she holds evidence of a formal qualification in basic medical training 
issued by a third State which has been recognised only by the Member State in 
which he or she obtained the diploma as a specialised doctor and which is not 
among those referred to in point 5.1.1 of Annex V to that directive, and 
Article 25(4) of the directive makes the issuance of evidence of a formal 
qualification as a specialised doctor contingent on possession of evidence of one 
of those formal qualifications in basic medical training? 
Article 2: […] 
[…] [Decision about notifications] 
[…] 
[Formation of court, dates, signatures and standard formula]