Judgment — ECLI:EU:C:1998:375
Date: 1998-07-16
Language of the case: French;Dutch
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Concepts: The various activities
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary, medical training in the Flem­
ish Community of Belgium is as follows. On 
the one hand, academic training in medicine 
leading to a university degree is divided into 
two courses extending over a total of seven 
years. The first course lasts three years and 
the second course four years. At the end of 
the third year of the second course of study, 
that is to say on the completion of six years' 
training, the student is issued with a certifi­
cate attesting that he has completed six years 
of study (the intention of the legislature 
being to comply with the Directive in that 
way) and that certificate is required in order 
for the student to follow the fourth year of 
the second course of study. On the other 
hand, training in general medical practice 
lasts three years. However, it does not start 
when the second course of study is com­
pleted and a university degree is awarded; 
instead, it begins with the fourth and final 
year of the second course of academic study 
and continues for a further two years. That is 
to say the fourth year of the second course 
of study leading to a university degree in 
medicine is, in Belgium, at the same time also 
the first of three years' specific training in 
general medical practice. In the Flemish 
Community of Belgium, therefore, studies 
for general medical practice last nine years, 
namely six years of academic study, one year 
in which the academic study leading to the 
university degree in medicine is completed 
and in parallel specific training in general 
medical practice is begun, and finally two 
years consisting purely of training in general 
medical practice. 
4. In Community law, the elements which 
must feature in the national systems govern­
ing specialisation in general medical practice 
are laid down in Directive 93/16/EEC, 
which consolidates Council Directives 
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FÉDÉRATION BELGE DES CHAMBRES SYNDICALES DE MÉDECINS ν FLEMISH GOVERNMENT A N D OTHERS 
75/362/EEC 3 and 75/363/EEC 4 of 16 June 
1975 and also incorporates Council Directive 
86/457/EEC of 15 September 1986.5 
Article 23(1) of the Directive provides: 
'The Member States shall require persons 
wishing to take up and pursue a medical pro­
fession to hold a diploma, certificate or other 
evidence of formal qualifications in medicine 
referred to in Article 3 ...'. 6 
Article 23(2) states: 
'A complete period of medical training of 
this kind shall comprise at least a six-year 
course or 5 500 hours of theoretical and 
practical instruction given in a university or 
under the supervision of a university.' 
Article 24 provides: 
'Member States shall ensure that the training 
leading to a diploma, certificate or other evi­
dence of formal qualifications in specialised 
medicine, meets the following requirements 
at least: 
(a) it shall entail the successful completion 
of six years' study within the framework 
of the training course referred to in 
Article 23 ...; 
(b) it shall comprise theoretical and practical 
instruction; 
(e) it shall involve the personal participation 
of the doctor training to be a specialist in 
the activity and in the responsibilities of 
the establishments concerned.' 
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 
accouchemcnts/Wettelijk diploma van doctor in de genees-, 
heel- en verloskunde' (diploma of doctor of medicine, sur­
gery and obstetrics required by law) awarded by the univer­
sity faculties of medicine, the Central Examining Board or 
the State University Education Examining Board. 
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OPINION OF MR COSMAS — CASE C-93/97 
The requirements to be met by specific train­
ing in general medical practice are laid down 
in Articles 31 and 32 of the Directive. Article 
31(1), on which the outcome of this case 
turns, provides: 
'The specific training in general medical 
practice referred to in Article 30 must meet 
the following minimum requirements: 
(a) entry shall be conditional upon the suc­
cessful completion of at least six years' 
study within the framework of the train­
ing course referred to in Article 23; 
(b) it shall be a full-time course lasting at 
least two years, and shall be supervised 
by the competent authorities or bodies; 
(c) it shall be practically rather than theo­
retically based; the practical instruction 
shall be given, on the one hand, for at 
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 
health establishments or structures con­
cerned with general medical practice; 
however, without prejudice to the afore­
said minimum periods, the practical 
instruction may be given for a maximum 
period of six months in other approved 
health establishments or structures con­
cerned with general medical practice; 
(d) it shall entail the personal participation 
of the trainee in the professional activi­
ties and responsibilities of the persons 
with whom he works.' 
IV — Questions referred for a preliminary 
ruling 
5. The questions referred by the Cour 
d'Arbitrage to the Court of Justice for a pre­
liminary ruling relate exclusively to the point 
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 
medical qualification referred to in Article 3 
of the Directive. Specifically, the three ques­
tions are as follows: 
' 1 . Must Article 31(l)(a) of Council Direc­
tive 93/16/EEC of 5 April 1993 to 
facilitate the free movement of doctors 
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and the mutual recognition of their 
diplomas, certificates and other evidence 
of formal qualifications, in conjunction 
with Articles 3 and 23 and with the 
other provisions of Tide IV of that 
directive, be interpreted as meaning that 
the specific training in general medical 
practice cannot begin until after the per­
son concerned has obtained, after at 
least six years' study, the diploma 
referred to in Article 3? 
2. Must Article 31(l)(d) of that directive 
be interpreted as meaning that the "per­
sonal participation of the trainee in the 
professional activities and responsibili­
ties of the persons with whom he 
works" requires the trainee to pursue 
the activities of a doctor which are 
reserved to holders of the diplomas 
required by Articles 2 and 3 of the 
directive? 
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
tive or the part-time training provided 
for by Article 34?' 
V — My views on the questions 
6. First of all, I consider it helpful to point 
out that the problem of interpretation raised 
by the referring court is due chiefly to the 
unhappy wording of certain provisions of 
the Directive. That is a fault frequently 
found in legislation which consolidates and 
incorporates the previous legislation. As the 
Belgian Government correctly states, the 
Community legislature appears at certain 
points to contradict itself and to rely on pro­
visions which cancel each other out. The 
objective of the person interpreting and 
implementing the above rules can therefore 
only be to seek the correct meaning of the 
disputed provisions of the Directive, which 
must form part of a logical system for the 
organisation of training in general medical 
practice and be mutually coherent, not 
inconsistent. The best way of giving a useful 
reply to the questions referred for a prelimi­
nary ruling is to ascertain the true will of the 
Community legislature in relation to the 
mechanism for providing specific training in 
general medical practice. 
A — Question 1 
7. In my view, this question does not 
present particular difficulties; for that reason, 
moreover, the three Governments as well as 
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OPINION OF MR COSMAS — CASE C-93/97 
the Commission appear, in the observations 
which they have lodged, to agree on the 
interpretation to be adopted. In particular, it 
must be accepted that it is not necessary for 
a trainee to obtain the university qualifica­
tion referred to in Article 3 of the Directive 
in order to begin specific training in general 
medical practice. That is to say, in order for a 
trainee to begin specialising in general medi­
cal practice in Flanders, he does not first 
have to hold the 'diplôme légal de docteur en 
médecine, chirurgie et accouchements/ 
Wettelijk diploma van doctor in de genees-, 
heel- en verloskunde' which, as stated above, 
is obtained after seven years' successful 
study. 
8. That conclusion follows, first of all, from 
the wording of Article 31(1) of the Directive, 
which provides that entry to specific training 
in general medical practice is to be 'condi­
tional upon the successful completion of at 
least six years' study within the framework 
of the training course referred to in Article 
23'. Had the authors of the Directive wished 
the beginning of specific training to be con­
ditional upon first obtaining a qualification 
in medicine, they would have stipulated that 
as an express requirement. It should also be 
noted that Article 24(1 )(a), which relates to 
training leading to formal qualifications in 
specialised medicine (other than in general 
medical practice), requires the successful 
completion of six years' study before the 
training begins, but does not expressly state 
that it is necessary first to graduate from a 
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 
training in general medical practice is 
received as part of, or separately from, basic 
medical training as laid down nationally'. 
More generally, however, where the Direc­
tive refers to the persons wishing to begin 
specific training in general medical practice, 
it uses the term 'trainee' and not 'doctor'. 
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 
to Article 23 of the Directive. Specifically, 
the Community legislature refers in 
Article 31(1) to six years' successful study '... 
within the framework of the training course 
referred to in Article 23'. Furthermore, 
Article 23 lays down, first, the features 
required of medical training, that is to say 
suitable scientific knowledge, clinical experi­
ence and so forth and, secondly, the mini­
mum duration of that training. In the view of 
the Fédération, it is important that Article 23 
describes the 'complete period of medical 
training' 7 and does not merely provide that 
medical studies must last at least six years. 
Thus, the only logical and reliable interpreta­
tion is that, since Article 23 requires a com­
plete period of medical training, it also pre­
supposes that the university degree ensuring 
the 'completeness' of that training is 
7 — Emphasis added by the Fédération. 
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obtained. Therefore, the Fédération main­
tains, since Article 31, upon which this case 
turns, refers to Article 23 and Article 23 
requires that a university degree first be 
obtained, it logically follows that specialisa­
tion in general medical practice cannot begin 
until the trainee has graduated from a medi­
cal faculty. 
10. I consider that the approach adopted by 
the Federation is faulty in its final conclu­
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 
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 
who have successfully completed those six 
years' study may begin to specialise in gen­
eral medical practice even if they have not 
yet graduated. 
11. It accordingly appears, at least when 
answering the first question referred for a 
preliminary ruling, that the Community leg­
islature preferred to leave the Member States 
free to choose between a system in which 
specific training in general medical practice 
begins only after a university degree has 
been obtained and a system in which that 
training begins after six years' successful 
study of medicine but before a university 
degree has been obtained. 
The first question must therefore be 
answered in the negative. 
Β — Questions 2 and 3 
12. However, the answer to the first ques­
tion referred for a preliminary ruling is only 
the tip of the iceberg. The issue as to 
whether students must complete their basic 
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 
training in general medical practice and 
requires the trainee to participate personally 
'in the professional activities and responsi­
bilities of the persons with whom he works', 
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OPINION OF MR COSMAS — CASE C-93/97 
means that that trainee must first (and from 
the beginning of the specific training) hold 
the qualification referred to in Article 3 of 
the Directive. 
13. Both the Belgian Government and the 
plaintiff in the main proceedings maintain 
that the second question should be answered 
in the affirmative. For the Belgian Govern­
ment, the mere fact that a trainee specialist in 
general medical practice is required to par­
ticipate in 'professional activities' is sufficient 
for it to follow as a matter of construction 
that he must hold the university degree 
referred to in Article 3 of the Directive. In 
particular, it is inconceivable that a person 
who is not a doctor may participate in the 
professional activities of a doctor; in addi­
tion, it would be particularly dangerous to 
accept that persons who do not themselves 
hold a degree in medicine may participate 
personally 'in the ... responsibilities' of a 
doctor. The Belgian Government acknowl­
edges that the answer which it suggests for 
the second question referred for a prelimi­
nary ruling is inconsistent with its assertions 
relating to the first question. However, that 
inconsistency must, in its view, be ascribed 
to the wording of the Directive, which con­
tains provisions from previous directives, 
namely Council Directive 86/457/EEC on 
specific training in general medical practice 
and Council Directive 75/362/EEC of 
16 June 1975, which was intended to facili­
tate the effective exercise of the right of 
establishment and freedom to provide ser­
vices for the medical professions. 
14. The plaintiff in the main proceedings 
relies on two arguments which it derives 
from the wording of the Directive. First, it 
refers to Article 32, which makes provision 
for the case of specific training in general 
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 
general medical practice must hold a univer­
sity degree in medicine. Also, the objective 
of Article 30 et seq. of the Directive, which 
are concerned with specific training in gen­
eral medical practice, is to provide 'adequate 
preparation for the effective exercise of gen­
eral medical practice', as is expressly stated in 
the third indent of Article 34(1). In that 
light, it is clearly more compatible with the 
above objective for Article 31(l)(c) and (d) 
of the Directive to be given a strict interpre­
tation, under which the trainee's practical 
preparation and his participation in the 
activities and responsibilities needed for a 
complete training in general medical practice 
require him to hold a qualification in medi­
cine. 
15. The Commission and the Governments 
of the two Belgian Communities do not 
agree with the reasoning of the other parties 
set out above. They maintain that the second 
question referred for a preliminary ruling 
must also be answered in the negative. First 
of all, they refer to the argument expanded 
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 
degree. Furthermore, in the view of the Gov­
ernments of the two Belgian Communities 
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the fact that Article 31 refers to 'trainee' spe­
cialists in general medical practice and not to 
'medical practitioners' specialising in that 
field supports that view. The Government of 
the Flemish Community adds that the use of 
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 
under Article 31, which lays down provi­
sions relating to dependent, that is to say 
non-autonomous, specialisation in general 
medical practice. 
16. The same reasoning is followed by the 
Commission, which points out the need to 
distinguish between, first, the fundamental 
importance, for the grounding of specialists, 
of practical training in general medical prac­
tice and, secondly, the independent pursuit 
of the medical profession. According to the 
Commission, when the authors of the Direc­
tive refer to training which is to be 'practi­
cally rather than theoretically based' and is 
to entail 'the personal participation of the 
trainee in the professional activities and 
responsibilities of the persons with whom he 
works', their aim is not to acknowledge that 
medicine may be practised independently 
but to organise training which, moreover, as 
Article 31(1 )(b) expressly provides, is to be 
'supervised by the competent authorities or 
bodies'. Also, Article 31(l)(d) does not state 
that the trainee fully assumes the responsi­
bilities of a doctor, but that he participates in 
the responsibilities of other persons with 
whom he works who, it goes without saying, 
are doctors. 
17. Accordingly, the plaintiff in the main 
proceedings and the Belgian Government 
suggest that the second quest ion referred for 
a preliminary ruling should be answered in 
the affirmative, while the Commission and 
the Governments of the two Belgian Com­
munities propose that it be answered in the 
negative. The differences in the views put 
forward by the parties in relation to the 
answer to the third question referred for a 
preliminary ruling are, in my view, indicative 
of the lack of clarity which is a feature of the 
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
tion in the negative. The Government of the 
French Community considers it preferable 
for a negative answer to be given in which it 
is pointed out that the Directive does not 
require persons receiving training in general 
medical practice to pursue all the activities of 
a doctor from the beginning of that training. 
The Belgian Government also answers the 
third question in the negative; it adds that, 
on a correct interpretation of the Directive, a 
national system may, but does not have to, 
provide that trainees in general medical prac­
tice are to be qualified doctors from the 
beginning of that training. That is to say, it 
regards as compatible with the Directive a 
national system under which, in the first year 
of specialisation, theoretical training only is 
given and the trainee is not required to be a 
doctor. The diametrically opposite view is 
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OPINION OF MR COSMAS — CASE C-93/97 
held by the plaintiff in the main proceedings, 
which maintains that pursuit of the activities 
of a doctor from the beginning of specific 
training in general medical practice is inextri­
cably linked with that training and with the 
need for the trainee to be provided with 
'adequate preparation for the effective exer­
cise of general medical practice'. Finally, the 
Commission appears not to follow the same 
reasoning throughout when giving its views 
on the third question referred for a prelimi­
nary ruling. First it puts forward the view 
that that question must be answered in the 
affirmative. Then, however, it maintains that 
in reality the Member States have a discre­
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 
18. Before addressing the more specific 
issues raised by this case, I consider it essen­
tial to point out that the case is directly con­
cerned with the protection of health within 
the Community, inasmuch as it relates to the 
quality of the training provided to those 
directly serving health, that is to say the 
servants of Hippocrates. Therefore, in my 
view at least, the Directive must necessarily 
contribute 'to the attainment of a high level 
of health protection'. When the Directive 
was adopted, the Maastricht Treaty, which 
added to Part One of the EC Treaty that the 
Community must make a 'contribution to 
the attainment of a high level of health pro­
tection', had not yet been ratified. 9 How­
ever, I consider that that provision cannot be 
immaterial to the outcome of this case and 
that, in the event of doubt, the solution 
which corresponds more closely to the con­
cept of seeking a high level of health protec­
tion is to be preferred. 
19. To that comment of a legal nature should 
be added the following practical one. In the 
field of health and of medical training, spe­
cialisation in general medical practice has, as 
experience has taught us, become one of the 
most difficult and demanding specialisations; 
furthermore, the harmonisation at European 
level of specialisation in general medical 
practice presents the greatest practical diffi­
culties. For those reasons, moreover, the 
Directive distinguishes, in the field which it 
regulates, between specialisation in general 
medical practice and all other specialisations. 
8 — The Commission thus appears to assert, first, that under the 
Directive trainees must pursue the activities of a doctor from 
the beginning of their specialisation, secondly, that the Mem­
ber States simply have a discretion as to whether to impose 
that obligation and, thirdly, that the Member States may 
choose the time at which not the pursuit of medical activities 
but the practical training described in Article 31(l)(d) of the 
Directive commences. According to the rules of logic, only 
one of those solutions is tenable. In any case, those contra­
dictions are due rather to a misunderstanding of the third 
question. As is apparent from the observations which it sub­
mitted to the Court, the Commission considers that the 
referring court has asked whether, under the Directive, a 
trainee may pursue the activities of a doctor from the begin­
ning of his specific training and not whether he is required to 
pursue those activities. 
9 — See Article 3(o) of the EC Treaty, as amended by the Maas­
tricht Treaty. Following the signing of the Treaty of Amster­
dam, which has not yet been ratified, that provision has, 
without amendment, become Article 3(p). 
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20. By way of definition of the matter at 
issue, the central problem of interpretation 
which is raised by the second and third ques­
tions referred for a preliminary ruling is con­
cerned with the meaning of Article 31(1)(d) 
of the Directive, that is to say the provision 
under which a requirement of specific train­
ing in general medical practice is 'the per­
sonal participation of the trainee in the pro­
fessional activities and responsibilities of the 
persons with whom he works'. 
21. I consider it beyond argument that when 
the authors of the Directive laid down the 
requirements for the organisation of training 
in general medical practice they did not, 
ostensibly at least, have in mind imposing a 
mandatory requirement that a trainee must 
hold the university degree referred to in 
Article 3 of the Directive before the begin­
ning of that training. 10 On the other hand, 
however, they do not fail to stress the impor­
tance of the practical character of that train­
ing, and for that reason they end up 
expressly requiring the personal participation 
of trainees in certain activities of a doctor. 
Furthermore, they clearly provide that per­
sons wishing to take up and pursue a medical 
profession are required, without exception, 
to hold a diploma, certificate or other evi­
dence of formal qualifications. In short, it 
cannot be automatically ruled out that, while 
the Community legislature does not directly 
require that a medical qualification be 
obtained first, it may nevertheless so require 
indirectly. It is for the Court to seek the true 
meaning of the provisions at issue. 
22. Before analysing Article 31(1)(d), I con­
sider it necessary to point out that, in my 
view, the answer to the second and third 
questions cannot be sought in the wording 
of Articles 32 and 34. Those articles admit­
tedly relate to qualified doctors, but they 
govern special procedures for training in 
general medical practice which fall outside 
the general system under Article 31. It could 
of course be argued a contrario that the 
Community legislature refers to trainee gen­
eral practitioners in Article 31, but to doc­
tors who specialise in general medical prac­
tice in Article 32, because it wishes to 
exempt the former from the requirement of 
first holding a university degree in medicine. 
23. I also think that it is necessary to reject 
the intermediate solution which both the 
Belgian Government and the Commission 
appear to put forward in their observations, 
according to which a national system such as 
that in Belgium satisfies the requirements of 
Article 31 of the Directive inasmuch as, for 
two years at least (the second and third 
years), trainees in general medical practice 
participate in the specific training as qualified 
doctors. First of all, it is not clear from the 
documents in the case whether a medical stu­
dent in Belgium who, having successfully 
10 — That is shown sufficiently clearly by the preamble to the 
Directive, where it is stated that 'it is immaterial whether 
this training in general medical practice is received as part 
of, or separately from, basic medical training as laid down 
nationally'. 
I - 4849 
OPINION OF MR COSMAS — CASE C-93/97 
completed the first six years of medicine, has 
enrolled for the seventh year of basic studies 
and, in parallel, for the first year of specific 
training in general medical practice, may 
continue with the second and third years of 
that training without having first obtained a 
degree in medicine. 11 If something similar 
were possible, there could be cases where 
students are not qualified doctors for all 
three years of their special training in general 
medical practice. Of course, under Article 
31(3) the issue of certificates, diplomas or 
other evidence of formal qualifications 
awarded after specific training in general 
medical practice is conditional upon the 
trainee's 'holding one of the diplomas, cer­
tificates or other evidence of formal qualifi­
cations referred to in Article 3', so that the 
trainee will, at least, have to hold a qualifica­
tion in medicine in order to become a gen­
eral practitioner. However, in order for it to 
be possible for trainees to complete their 
specific training in general medical practice 
without having first obtained the university 
degree in medicine, Article 31(1 )(d) must be 
interpreted as not requiring such trainees to 
be qualified doctors throughout the duration 
of that training, within the framework of 
which they participate in the 'professional 
activities' and 'responsibilities' of the persons 
with whom they work. That, however, is the 
issue to be resolved. 
24. It could be stated in response to the 
above reasoning that it relates to a hypoth­
esis which is, in reality, implausible or even 
mistaken if ultimately, in practice, trainees in 
general medical practice have already 
obtained a degree in medicine when they 
begin the second year of specific training or 
if the national system itself requires them to 
have obtained that degree in order for them 
to be admitted to the second year of training. 
In such a case, they undergo their training as 
qualified doctors in the second and third 
years of specialisation. However, even then, 
the requirements laid down by Article 31 are 
not necessarily met. In particular, the com­
bined effect of Article 31(1 )(a), (b) and (c) is 
as follows: on the one hand, specific training 
in general medical practice must be 'a full-
time course lasting at least two years'; on the 
other hand, that specific training must, 
throughout its duration, 'entail the personal 
participation of the trainee in the profes­
sional activities and responsibilities of the 
persons with whom he works'. In other 
words, the requirement laid down by Article 
31(1)(d) relates to the entire duration of the 
specific training in general medical practice 
and not to the minimum duration of two 
years laid down in Article 31(1)(b); accord­
ingly, if under a national system the specific 
training extends over three or more years, 
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 
medicine. We thus return to the starting 
point for the problem which has been set out 
above: the Court is asked to give a ruling on 
whether the personal participation of the 
trainee general practitioner in the profes­
sional activities and responsibilities of the 
persons with whom he works, as required by 
Article 31(1)(d), means that he must first 
11 — That possibility may arise if the trainee passes the examina­
tion included in the first year of the specific training but 
fails the seventh year of the basic training. That example 
may of course be hypothetical or even mistaken if the 
national system provides that a trainee cannot progress to 
the second year of the specific training unless he has passed 
both the examinations leading to a university degree and 
those specifically relating to general medical practice, or if 
the syllabus for the seventh year of medicine and the first 
year of specific training in general medical practice is the 
same. Or course, in the latter case I am unable to under­
stand why that national system allows a trainee to begin 
specialising in general medical practice before he has 
obtained the university degree. 
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have obtained the university degree referred 
to in Article 3 of the Directive. 
25. The key provision for answering the 
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
ture which the Directive seeks to establish 
for the medical profession; it is, furthermore, 
the most important limit for interpreting 
Article 31(1 )(d) of the Directive correctly. 
The problem may be put as follows: is 'the 
personal participation of the trainee in the 
professional activities and responsibilities of 
the persons with whom he works' tanta­
mount to the taking up and pursuit of a 
medical profession, for which it is necessary 
to hold a qualification in accordance with 
Article 23? 12 
26. A number of weighty arguments support 
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 
directly involves continuous supervision, as 
is clearly stated in Article 31(1)(b). 
27. If the subject-matter of the questions 
referred for a preliminary ruling were other 
than that at issue, I consider that further 
analysis would not be required in order to 
answer them. However, certain specific and 
by no means insignificant factors complicate 
the problem. The basic objection to the pos­
sibility of drawing a clear distinction 
between the 'pursuit' of a medical profession 
and 'personal participation' in activities and 
responsibilities of another person who is a 
specialist medical practitioner stems from the 
very nature of medical practice. 
28. The Community legislature requires the 
trainee specialist to participate personally in 
12 — If that question is answered in the affirmative, the Flemish 
training system infringes Community law. That finding is 
not upset by the fact that the university authorities issue 
trainee general practitioners with a certificate attesting that 
they have already successfully completed six years' basic 
medical study, which meet the requirements as to quality 
and duration laid down by the Directive. If specific training 
in general medical practice involves the pursuit of a medical 
profession for the purposes of Article 23 of the Directive, 
the trainees must hola the specific university qualification 
which is referred to in Article 3 and a mere certificate is not 
sufficient. 
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OPINION OF MR COSMAS — CASE C-93/97 
the activities of the doctor training him and 
not merely to assist. However, how far does 
'personal participation' extend in the areas of 
diagnosis, treatment and clinical aftercare of 
patients, that is to say in relation to impor­
tant and, at the same time, sensitive areas of 
human health which fall within the responsi­
bilities of a doctor? It should be noted that I 
do not base that doubt only on everyday 
experience and the perception which I may 
have of that issue as a lawyer, that is to say 
not as a specialist in medical matters. I rely, 
first, on the fact that none of those who have 
asserted in this case that a clear distinction 
may be drawn between the independent pur­
suit of a medical profession and personal 
participation in such activity has adduced 
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. 
29. It is worth referring at this point to the 
view taken by the Court in Βouchoucha. 13 
The case concerned a person who held a 
diploma in osteopathy and practised as an 
osteopath in France without also being 
qualified as a doctor, as required by French 
law. For that reason criminal proceedings 
were brought against him. The Court con­
cluded that 'in the absence of harmonisation 
at Community level regarding activities 
which fall solely within the scope of the 
practice of medicine, Article 52 of the EEC 
Treaty does not preclude a Member State 
from restricting an activity ancillary to medi­
cine ... exclusively to persons holding the 
qualification of doctor of medicine'. I con­
sider that two important conclusions may be 
drawn from that view taken by the Court. 
First, there is no clear or commonly accepted 
definition of the concept of a medical profes­
sion as found in Article 23 of the Direc­
tive. 1 4 Secondly, because the scope of such 
activities of a doctor is not clearly delimited 
the Court appears to accept a wide interpre­
tation thereof (which, in the final analysis, is 
that given by the Member States) even 
though in that way activities which are not 
purely medical in nature may wrongly be 
covered. 15 
30. As regards this case, the following com­
ments must be made. The fact that 'medical 
profession' within the meaning of Article 
23(1) of the Directive cannot be given an 
interpretation which is clear and not subject 
to dispute makes it risky, if not dangerous, to 
attempt to distinguish between the 'indepen­
dent pursuit' of a medical profession and 
'personal participation' in the activities of a 
doctor and the responsibilities which they 
entail. In other words, whether acts will be 
13 — Case C-61/89 Bouchoucha [1990] ECR I-3551. 
14 — In Bouchoucha the Court relied, as regards the meaning of 
activities of a doctor, on the provisions of Directive 
75/363/EEC, which, as stated above, was consolidated in 
Directive 93/16/EEC. 
15 — That is, moreover, the consequence of the solution adopted 
in Bouchoucha. A profession ancillary to medicine is dealt 
with in the same way (as regards the conditions for pursu­
ing it) as that of a doctor, that is to say it is necessary to 
hold a university degree in medicine. 
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considered to amount to the 'independent 
pursuit' of a medical profession or 'personal 
participation' in the practice and responsi­
bilities of another doctor depends on 
whether a wide or a narrow definition is 
given to 'medical profession', for which there 
is no commonly accepted definition in Com­
munity law. 
31. Consequently, the Court is faced with 
two logically tenable solutions. If it chooses 
a strict application of Article 31(1)(d) of the 
Directive and requires a trainee to obtain a 
qualification in medicine before he special­
ises in general medical practice, it will make 
access to that specialisation more difficult in 
a way which perhaps exceeds the apparent 
will of the authors of the Directive. 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 
up and pursue a medical profession is 
required to hold a medical qualification 
referred to in Article 3 of the Directive, is 
restricted or even indirectly circumvented. 
32. The danger arising from the second 
interpretation is, in my view, more signifi­
cant and the one which it is more important 
to avoid. Moreover, it appears that the Court 
recognised that danger in Bouchoucha, where 
it concluded that it was preferable for the 
Member States to be allowed to opt for a 
wide definition of the term 'medical acts' at 
the expense of related terms. 1 6 Adopting 
similar reasoning, I consider that it is 
sounder in this case to interpret Article 
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 
my view, appropriate for the balance to tilt 
towards the side of contributing 'to the 
attainment of a high level of health protec­
tion' as required by the relevant fundamental 
rule in Article 3 of the Treaty. 1 7 
33. The Community legislature of course 
has the power to amend the legislation in the 
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, 
there is, in my opinion, no doubt that requiring a trainee to 
obtain a basic degree in medicine before he can begin to 
specialise in general medical practice promotes the more 
complete practice of medicine and better health protection 
generally. That opinion is confirmed by the statements of 
the Commission's representative regarding the views of the 
Advisory Committee on Medicine on that question. 
According to the submissions made at the hearing, an advi­
sory committee on medicine has been set up at Community 
level, which gives its opinion on issues relating to medical 
practice and that opinion is taken into account by the Com­
mission when elaborating draft legislation which it pro­
poses to the Council. That committee has stated expressly 
and clearly that specialisation in general medical practice 
must begin after banc medical studies have been completed. 
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OPINION OF MR COSMAS — CASE C-93/97 
future in such a way that, while allowing 
specialisation in general medical practice 
without the qualification in medicine being 
obtained first, it creates a clear distinction 
between, on the one hand, the subject-matter 
of the practical part of the specific training 
and, on the other, medical activities which 
only a qualified doctor can pursue. It can 
also be checked whether that solution is 
compatible with the principle in Article 3 of 
the Treaty regarding the attainment of 'a 
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. 
I - 4854