Provisional text
OPINION OF ADVOCATE GENERAL
PIKAMÄE
delivered on 29 February 2024 (1)
Case C‑8/23
FH
v
Conseil national de l’ordre des médecins,
other parties:
Ministre de la Santé et de la Prévention,
Ministre de l’Économie, des Finances et de la Souveraineté industrielle et numérique
(Request for a preliminary ruling from the Conseil d’État (Council of State, France))
(Reference for a preliminary ruling – Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Recognition of professional qualifications – Directive 2005/36/EC – Right to pursue the profession of doctor – System of automatic recognition – Basic medical training diploma awarded by a third country – Diploma recognised by the home Member State – Obtaining a qualification as a specialised doctor in the home Member State – Non-recognition of that qualification by the host Member State)
I.      Introduction
1.        The present request for a preliminary ruling, referred by the Conseil d’État (Council of State, France) under Article 267 TFEU, concerns the interpretation of Article 21 and Article 25(4) and of points 5.1.1 and 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 (2) (‘Directive 2005/36’). The request was made in proceedings between FH and the Conseil national de l’ordre des médecins (National Council of the Medical Association, France; ‘the CNOM’) concerning the latter’s refusal to enter FH on the register of the Medical Association.
2.        The present case raises an important, and in part new, point of law, under Directive 2005/36, concerning the automatic recognition in the European Union of a diploma as a specialised doctor and the allocation among the Member States of the responsibility for the assessment of specialist medical training and for the control of access to that profession, where the basic medical training was completed outside the European Union. In particular, the Court must rule on the effects of the recognition by a Member State of a basic medical training diploma obtained in a third country, and on any obligation incumbent on the other Member States also to recognise that diploma.
3.        In the event that Directive 2005/36 does not contain provisions addressing the specific circumstances of the case in the main proceedings, it will be for the Court to provide, as far as possible, practical solutions to facilitate the recognition of professional qualifications acquired by a person in the situation described above. In its considerations, the Court should take into account the objectives pursued by the legislature, namely to promote the freedom to provide services and the freedom of establishment within the European Union, while ensuring strict respect for public health and safety and consumer protection.
II.    Legal background
A.      European Union law
4.        Recitals 6, 19 and 44 of Directive 2005/36 state:
‘(6)      The facilitation of service provision has to be ensured in the context of strict respect for public health and safety and consumer protection. Therefore, specific provisions should be envisaged for regulated professions having public health or safety implications, which provide cross-frontier services on a temporary or occasional basis.
…
(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. In addition, access in the Member States to the [profession] of doctor … should be made conditional upon the possession of a given qualification ensuring that the person concerned has undergone training which meets the minimum conditions laid down …
…
(44)      This Directive is without prejudice to measures necessary to ensure a high level of health and consumer protection.’
5.        The first paragraph of Article 1 of that directive provides:
‘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 (referred to hereinafter as the host Member State) shall recognise professional qualifications obtained in one or more other Member States (referred to hereinafter as the home Member State) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession.’
6.        Article 2(2) of that directive provides:
‘Each Member State may permit Member State nationals in possession of evidence of professional qualifications not obtained in a Member State to pursue a regulated profession within the meaning of Article 3(1)(a) on its territory in accordance with its rules. In the case of professions covered by Title
III, Chapter
III, this initial recognition shall respect the minimum training conditions laid down in that Chapter.’
7.        According to Article 3(1) and (3) of that directive:
‘1.      For the purposes of this Directive, the following definitions apply:
…
(c)      “evidence of formal qualifications”: diplomas, certificates and other evidence issued by an authority in a Member State designated pursuant to legislative, regulatory or administrative provisions of that Member State and certifying successful completion of professional training obtained mainly in the [European Union]. Where the first sentence of this definition does not apply, evidence of formal qualifications referred to in paragraph 3 shall be treated as evidence of formal qualifications;
…
3.      Evidence of formal qualifications issued by a third country shall be regarded as evidence of formal qualifications if the holder has three years’ professional experience in the profession concerned on the territory of the Member State which recognised that evidence of formal qualifications in accordance with Article 2(2), certified by that Member State.’
8.        Under Article 4(1) of Directive 2005/36, the recognition of professional qualifications by the host Member State allows beneficiaries to gain access in that Member State to the same profession as that for which they are qualified in the home Member State and to pursue it in the host Member State under the same conditions as its nationals.
9.        Under Chapter
I, entitled ‘General system for the recognition of evidence of training’, Article 10 of that directive provides:
‘This Chapter applies to all professions which are not covered by Chapters
II and III of this Title and in the following cases in which the applicant, for specific and exceptional reasons, does not satisfy the conditions laid down in those Chapters:
…
(d)      without prejudice to Articles 21(1), 23 and 27, for doctors, nurses, dental practitioners, veterinary surgeons, midwives, pharmacists and architects holding evidence of formal qualifications as a specialist, which must follow the training leading to the possession of a title listed in Annex V, points 5.1.1, 5.2.2, 5.3.2, 5.4.2, 5.5.2, 5.6.2 and 5.7.1, and solely for the purpose of the recognition of the relevant specialty;
…
(g)      for migrants meeting the requirements set out in Article 3(3).’
10.      Under the heading ‘Principle of automatic recognition’, Article 21 of that
directive provides:
‘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 [and] 5.1.2 … respectively, which satisfy the minimum training conditions referred to in Articles 24 [and] 25 … 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, points 5.1.1 [and] 5.1.2 … respectively.
The provisions of the first and second subparagraphs do not affect the acquired rights referred to in Articles 23 [and] 27 …
…
6.      Each Member State shall make access to and pursuit of the professional activities of doctors … subject to possession of evidence of formal qualifications referred to in Annex V, points 5.1.1 [and] 5.1.2 … respectively, attesting that the person concerned has acquired, over the duration of his training, and where appropriate, the knowledge and skills referred to in [Article]
24(3) …’
11.      Article 24 of that directive, which relates to basic medical training, provides:
‘1.      Admission to basic medical training shall be contingent upon possession of a diploma or certificate providing access, for the studies in question, to universities.
2.      Basic medical training shall comprise a total of at least five years of study, which may in addition be expressed with the equivalent ECTS [(European Credit Transfer and Accumulation System)] credits, and shall consist of at least 5 500 hours of theoretical and practical training provided by, or under the supervision of, a university.
…
3.      Basic medical training shall provide an assurance that the person in question has acquired the following knowledge and skills [referred to in points (a) to (d)].’
12.      Under the heading ‘Specialist medical training’, Article 25 of Directive 2005/36 provides:
‘1.      Admission to specialist medical training shall be contingent upon completion and validation of a basic medical training programme as referred to in Article 24(2) in the course of which the trainee has acquired the relevant knowledge of basic medicine.
…
4.      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.
…’
13.      Article 50(2) of that directive provides:
‘In the event of justified doubts, the host Member State may require from the competent authorities of a Member State confirmation of the authenticity of the attestations and evidence of formal qualifications awarded in that other Member State, as well as, where applicable, confirmation of the fact that the beneficiary fulfils, for the professions referred to in Chapter
III of this Title, the minimum training conditions set out respectively in Articles 24, 25, 28, 31, 34, 35, 38, 40, 44 and 46.’
14.      Annex V to that
directive is entitled ‘Recognition on the basis of coordination of minimum training conditions’. Under heading ‘V.1 Doctor of Medicine’, point 5.1.1 of that annex sets out the ‘evidence of formal qualifications in basic medical training’, which, for the Federal Republic of Germany, consists of the ‘Zeugnis über die Ärztliche Prüfung’ and the ‘Zeugnis über die Ärztliche Staatsprüfung und Zeugnis über die Vorbereitungszeit als Medizinalassistent, soweit diese nach den deutschen Rechtsvorschriften noch für den Abschluss der ärztlichen Ausbildung vorgesehen war.’
15.      Point 5.1.2 of that annex sets out the ‘evidence of formal qualifications of specialised doctors’ of the Member States, which, for the Federal Republic of Germany, is the ‘Fachärztliche Anerkennung’.
B.      French law
16.      Article
L. 4111-1 of the code de la santé publique (Public Health Code), in the version applicable to the dispute in the main proceedings, provides as follows:
‘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 Article] L. 4131-1 …;
…
3°      enrolled on the register of medical practitioners …, subject to the provisions of Articles
L. 4112-6 and L. 4112-7 …’
17.      Article
L 4111-2 of that code states:
‘…
II.      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 specialty 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.
…’
18.      Article
L 4131-1 of that code provides:
‘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;
(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;
…’
19.      The list set out in point 2(a) by the Decree of 13 July 2009 determining the lists and conditions for recognition of evidence of formal qualification as doctor and specialised doctor 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 corresponds to that set out in points 5.1.1 and 5.1.2 of Annex V to Directive 2005/36.
III. The facts of the dispute, the main proceedings and the question referred for a preliminary ruling
20.      FH is a French-German national who holds a State diploma as a doctor of medicine, awarded by the University of Monastir (Tunisia) on 18 September 2012.
21.      By a decision of 6 November 2015, the competent German authorities recognised that diploma as a basic medical training diploma and authorised FH to pursue the profession of doctor of medicine. By a decision of 1 August 2016, those authorities entered FH’s name on the register of the Medical Association of the Land Niedersachsen (Land of Lower Saxony, Germany). On 28 January 2021, FH obtained the diploma of specialist in anaesthesiology from the University of Hanover (Germany).
22.      On 25 March 2021, FH applied to the conseil départemental de Saône-et-Loire de l’ordre des médecins (Departmental Council of the Medical Association, Saône-et-Loire,
France) for his name to be entered on the register of the Medical Association on the basis of Article
L. 4111-1 of the Public Health Code. By a decision of 20 May 2021, the Departmental Council refused to grant that request.
23.      On an appeal brought by FH against the decision of the select panel of the conseil régional de Bourgogne-Franche-Comté de l’ordre des médecins (Regional Council of the Medical Association, Bourgogne-Franche-Comté,
France) which, by decision of 15 July 2021, had in turn rejected his application to be entered on the register of the Medical Association, the select panel of the CNOM, by decision of 17 September 2021, refused once more to enter his name on the register of the Medical Association.
24.      FH then brought an action against the latter decision, which is pending before the Conseil d’État (Council of State).
25.      In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘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], 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?’
IV.    The procedure before the Court
26.      The order for reference of 27 December 2022 was lodged at the Court Registry on 12 January 2023.
27.      FH, the CNOM, the French, Italian, Netherlands and Polish Governments, the EFTA (European Fair Trade Association) Surveillance Authority as well as the European Commission submitted written observations within the time limit set by Article 23 of the Statute of the Court of Justice of the European Union.
28.      At the hearing on 11 January 2024, the representatives
ad litem
of FH and of the CNOM, of the French Government, of the EFTA Surveillance Authority and of the Commission submitted observations.
V.      Legal analysis
A.      Preliminary remarks
29.      The present case concerns the interpretation and application of the provisions of Directive 2005/36 defining the rights and obligations of professionals for the purposes of the recognition of evidence of formal qualifications obtained within the European Union and the pursuit of a profession in another Member State. In accordance with Article 4(1) of Directive 2005/36, the recognition of professional qualifications by a host Member State allows the beneficiaries to gain access in that Member State ‘to the same profession as that for they are qualified in the home Member State’ and to pursue it in the host Member State ‘under the same conditions as its own nationals’, as the Court has held in its case-law. (3)
30.      Directive 2005/36 repealed and replaced a series of sectoral and general directives governing the recognition of professional qualifications and establishes, in essence, three alternative systems for the recognition of such qualifications. First of all, there is a general system (Chapter
I, Articles 10 to 15) which applies to all professions that do not fall within the scope of the other two systems (Article 10). Then there is a system of recognition based on professional experience (Chapter
II, Articles 16 to 20) which applies to certain activities referred to in Annex IV to that directive.
31.      Lastly, there is a system of automatic recognition (Chapter
III, Articles 21 to 49) which is characterised by minimum harmonisation of the training. The profession of doctor is one of the seven professions falling within the scope of the automatic recognition system, along with the professions of nurse, midwife, dental practitioner, pharmacist, architect and veterinarian. (4) Automatic recognition requires compliance with the minimum conditions for training referred to, depending on the profession in question, in Article 24 et seq. of that directive. The Court made it clear that Member States are prohibited from making recognition subject to requirements other than the submission of proof of appropriate training. (5)
32.      By its question referred for a preliminary ruling, the national court wishes to ascertain 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, may rely, in another Member State, on the basis of that qualification alone, on the system for the automatic recognition of formal qualifications referred to above, 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.
33.      As I will explain in my analysis, based on an interpretation of Directive 2005/36 and on the methods of interpretation recognised in the case-law, this question must be answered in the negative, on the ground that the automatic recognition system does not apply in the present case. That being said, I will not confine myself to answering the question put by the referring court, but I will also explain
the means which are available to a person in the situation described above in order best to achieve his or her objective. Such an approach is advisable in order to provide a useful response to the referring court, in accordance with the spirit of cooperation which must drive the preliminary ruling procedure.
B.      Whether the applicant in the main proceedings may rely on the automatic recognition system
1.      The inextricable link between a medical specialty and basic medical training
34.      According to settled case-law, in interpreting provisions of EU law, it is necessary to consider not only their wording, but also the context in which they occur and the objectives pursued by the rules of which they are part. (6)
35.      Article 21(1) of Directive 2005/36 provides that each Member State must recognise, inter alia, 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 and 5.1.2, respectively, which satisfy the minimum training conditions referred to in Articles 24 and 25, respectively, and must, 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.
36.      Consequently, where, as in the present case, a national of a Member State holds evidence of a formal qualification as a specialised doctor referred to in Annex V, point 5.1.2, that person should, in principle, obtain in the host Member State, on the basis of Article 21(1), automatic recognition of that qualification in order to pursue in that State the profession of doctor in the specialty concerned. Nevertheless, the question arises as to whether the fact that the person in question does not also hold evidence of a formal qualification in basic medical training issued by a Member State is an obstacle to such automatic recognition.
37.      In that regard, it should be noted that Article 21(1) requires that evidence of formal qualifications as doctor must ‘satisfy the minimum training conditions referred to [in particular in Article]
25 [of that directive]’. Article 25(4) states 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’. As regards to the Federal Republic of Germany, point 5.1.1 refers to two types of German qualifications in basic medical training. (7)
38.      A literal interpretation of Article 25(4) seems to imply that the automatic recognition of evidence of formal qualification as a specialised doctor, referred to in point 5.1.2 of Annex V to that directive, is inextricably linked to that of evidence of formal qualification in basic medical training, referred to in point 5.1.1 of that annex, and requires the prior possession of such evidence.
39.      It should be noted that the provisions of Article 21 of Directive 2005/36
always refer to the evidence of formal qualification in basic medical training in conjunction with the evidence of formal qualification of specialised doctors. In particular, those provisions never refer to point 5.1.2 of Annex V, relating to evidence of formal qualifications of specialised doctors, in isolation, but always refer to it in conjunction with point 5.1.1 of that annex, relating to evidence of formal qualifications in basic medical training.
40.      Thus, Article 21(1) refers to all ‘evidence of formal qualifications as doctor’, specifying that it gives access to the professional activities of doctor with basic training and specialised doctor. Furthermore, although those formal qualifications are set out in two separate points in Annex V, they are grouped together under the same heading ‘V.1. Doctor of Medicine’, with evidence of formal qualifications in basic medical training listed first, followed by evidence of formal qualifications of specialised doctors.
41.      Moreover, it is clear from the very title of Article 24 of Directive 2005/36 (‘Basic medical training’ (emphasis added)) that basic medical training is essential to guarantee the acquisition of the minimum knowledge and skills necessary to pursue the profession of doctor. In accordance with paragraph 2 of that article, that basic training lasts at least five years, which is longer than the minimum duration of all specialist medical training.
42.      The knowledge and skills acquired during basic medical training, as described in Article 24(3) of Directive 2005/36, thus constitute a foundation which is not taught in the context of specialist medical training as described in Article 25 of that directive, and which nevertheless
is essential for the pursuit of the professional activities of specialised doctor, whatever the specialty in question.
43.      As part of a contextual interpretation of Article 21(1) and Article 25(4) of Directive 2005/36, regard should be had to Article 21(6) of that directive, which provides that ‘each Member State shall make access to, and pursuit of, the professional activities of doctors … subject to possession of evidence of formal qualifications referred to in points 5.1.1 [and] 5.1.2 … of Annex V respectively, attesting that the professional concerned, over the duration of his training, has acquired, as appropriate, the knowledge, skills and competences referred to in [Article]
24(3)’. That provision clearly shows that
the evidence of formal qualification as a specialised doctor is not, in itself, a guarantee that the person concerned has acquired such knowledge and skills and that, consequently, automatic recognition of that evidence must be inextricably linked to that of evidence of formal qualification in basic medical training.
44.      Lastly, it is important to remember that automatic recognition applies only to the formal qualifications in medical training listed in points 5.1.1 and 5.1.2 of Annex V, which are considered by the Member States to guarantee the minimum training conditions. That is also the case for the German formal qualifications listed in point 5.1.1, which the applicant does not possess. Consequently, evidence of formal qualification obtained in a third State cannot be subject to automatic recognition, notwithstanding the fact that a Member State has unilaterally recognised it on the basis of its national law, in accordance with Article 2(2) of Directive 2005/36.
45.      That last aspect calls for a number of additional observations on my part, particularly as several Member States which intervened in the present case have expressed hesitation as to the possible legal consequences of a Member State recognising such evidence of formal qualification obtained in a third country.
2.      The legal consequences of unilateral recognition by a Member State of evidence of formal qualification under Article 2(2) of Directive 2005/36
46.      Different rules apply depending on where professional qualifications are obtained. A professional qualification issued by a Member State of the European Union, certifying successful completion of training which has taken place predominantly in the European Union, will be recognised more easily than a diploma issued by a third country. Indeed, Article 1 of Directive 2005/36 states that it ‘shall recognise professional qualifications obtained in one or more other Member States …’. (8) Article 3(1)(c) of that directive also states that ‘diplomas, certificates and other evidence … certifying successful completion of professional training obtained mainly in the [European Union]’ (9) constitute evidence of formal qualifications. In the case of a professional qualification obtained in a third country, EU law provides for recognition only where it is awarded in a Member State of the European Union pursuant to its national law.
47.      Under Article 2(2) of Directive 2005/36, each Member State ‘may permit Member State nationals in possession of evidence of professional qualifications not obtained in a Member State to pursue a regulated profession within the meaning of Article 3(1)(a) on its territory in accordance with its rules’. (10) That provision allows Member States to conclude bilateral agreements on the mutual recognition of professional qualifications with third countries. Thus, Member States are free to set the conditions for such recognition, as long as the minimum training conditions required for the sectoral professions covered by Chapter
III of Title
III of that directive are met. However, the wording of that provision clearly shows that the legal effects of such recognition, on the basis of national legislation, are limited to the territory of the Member State in question and cannot create obligations for other Member States.
48.      That interpretation is further supported by the judgment in Haim, (11) in which the Court interpreted Article 1(4) of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of dental practitioners, (12) which was worded in a similar way to Article 2(2) of Directive 2005/36, (13) in that recognition by a Member State of evidence of formal qualifications awarded by third countries, even if they have been recognised as equivalent in one or more Member States, is not binding on the other Member States. For the purposes of the present case, it means that Article 2(2) precludes the applicant in the main proceedings from being able to rely on the recognition by the German authorities of his professional qualification obtained in Tunisia in order to oblige the French authorities, in turn, to recognise it, pursuant to the system of automatic recognition.
49.      Irrespective of whether or not of that provision is applicable, it should be noted that Article 21(6) of Directive 2005/36 provides that the knowledge and skills relating to basic medical training must be ‘[acquired] over the duration of [the] training’, (14) which precludes, in principle, any decision by the national authorities having the effect of regarding training obtained in a third country as training obtained in a Member State. In other words, that provision presupposes a learning process which takes place in the context of academic studies. Consequently, only medical training ‘acquired’ in the European Union can provide the knowledge and skills necessary for the purposes of automatic recognition on the basis of Article 21(1) of that directive.
3.      Whether evidence of formal qualifications issued in a third country can be recognised under Article 3(3) of Directive 2005/36
50.      However, that does not mean that a person in the situation of the applicant in the main proceedings, who has obtained evidence of a formal qualification within the meaning of Article 3(1)(c) of Directive 2005/36 in a third country, is deprived of the possibility of pursuing his or her profession in another Member State. On the contrary, Article 3(3) of that directive provides that any ‘evidence of formal qualifications issued by a third country shall be regarded as evidence of formal qualification if the holder has three years’ professional experience in the profession concerned on the territory of the Member State which recognised that evidence of formal qualifications in accordance with Article 2(2), certified by that Member State’. (15)
51.      The recognition of professional qualifications acquired in third countries is therefore governed by rather strict provisions. A Union citizen who holds such professional qualifications may rely on Article 3(3) of Directive 2005/36 only under two conditions: (i) the diploma must have been recognised by a Member State of the European Union under its national law and, (ii) the holder of the professional qualification must have three years’ professional experience in the first Member State of recognition. The second condition is clearly intended to prevent citizens from abusing the scheme of the directive or attempting to circumvent the rules through the ‘recognition of recognition’. (16)
52.      The procedure for implementing the ‘recognition of recognition’ is, however, subject to specific rules. First of all, that recognition is subject exclusively to the general system set out in Chapter I of Title
III of Directive 2005/36. (17) All Member States are therefore required to recognise a third-country qualification which has previously been recognised in the European Union, but they are not required to grant automatic recognition. The effect of that rule is, first of all, to permit the second Member State to ensure, by means of compensation measures, that the holder of the third-country qualification attains not only the minimum level of training imposed by that directive, but also a level of training which goes beyond EU minimum levels, and which the State in question decided to require of its own nationals. Next, the second Member State of recognition is not obliged to offer the applicant a choice between two compensation measures if it has identified substantial differences between the training courses. In accordance with Article 14 of that directive, it may choose the type of compensation measure to stipulate, namely either an aptitude test or an adaptation period.
53.      For the purposes of considering the question referred for a preliminary ruling by the national court, it should be noted that, although the German authorities recognised the Tunisian formal qualifications of the applicant in the main proceedings, in accordance with Article 2(2) of Directive 2005/36, the positions of the parties to the main proceedings differ as to whether the applicant in the main proceedings actually acquired three years’ professional experience on German territory. For that reason, in the absence of more precise information, it must be assumed that the applicant in the main proceedings does not satisfy one of the two requirements imposed by Article 3(3) of that directive.
C.      Whether the applicant in the main proceedings can rely on the general system of recognition
54.      The question then arises whether a Union citizen, in the situation described in the question referred for a preliminary ruling, can nevertheless rely on the general system for the recognition of evidence of formal qualifications. As is apparent from Article 10 of Directive 2005/36, that system is subsidiary in nature, since it applies ‘to all professions which are not covered by Chapters
II and III of this Title and in the … cases in which the applicant, for specific and exceptional reasons, does not satisfy the conditions laid down in those Chapters’.
55.      That first condition appears, a priori, to be satisfied in the present case, since medical training obtained in a third country is not covered by Chapters
II and III of Title III of Directive 2005/36 on the freedom of establishment. More specifically, as I have explained in my analysis, the system of automatic recognition is not applicable to the present case, because the applicant in the main proceedings does not possess any of the evidence of formal qualifications in basic medical training referred to in point 5.1.1 of Annex V to that directive. In other words, the German authorities’ recognition of the Tunisian diploma of the applicant in the main proceedings, pursuant to Article 2(2) of that directive, does not have the effect of transforming that diploma into one of the German diplomas listed in point 5.1.1.
56.      That being said, attention should be drawn to the fact that Article 10 of Directive 2005/36 sets out certain particular circumstances, since it provides for application of the general system for the recognition of evidence of formal qualifications only in ‘specific and exceptional’ cases, which are expressly referred to in that provision. (18) That is the second of the two cumulative conditions. The situation referred to in Article 10(d) could be relevant in the present case in so far as it concerns a doctor who ‘must follow the training leading to the possession of a title listed in [point 5.1.1 of Annex V to that directive]’. However, it is important to note that that provision contains an important clarification, namely that the general system applies ‘solely for the purpose of the recognition of the relevant specialty’.
57.      However, I doubt that that condition is satisfied in the present case, since the applicant is seeking recognition not only of his specialty in anaesthesia, obtained in a Member State, but also of his basic medical training, acquired in a third country. Consequently, the wording of that provision already seems to me to preclude its application in the present case. Furthermore, it is not apparent from the observations of the applicant in the main proceedings that he is claiming, and has proved, that there are ‘specific and exceptional’ reasons, within the meaning of Article 10 of Directive 2005/36, justifying the application of the general system of recognition.
58.      In my opinion, there are also some considerations based on a contextual interpretation which indicate that Article 10(d) of Directive 2005/36 is not applicable. As I have explained above, Article 3(3) of that directive provides for a specific procedure permitting the recognition of third-country professional qualifications, subject to the requirement that the person in question has three years’ experience in the profession concerned on the territory of the Member State in which he or she obtained initial recognition under Article 2(2) of the directive. If that condition is satisfied, those qualifications will be recognised under the general system. In view of the above, it is difficult to understand why Directive 2005/36 would provide for a parallel, much less restrictive route, offering access to the same recognition system. It seems to me that an alternative application of Article 10(d) in order to facilitate the recognition of professional qualifications obtained in third countries in a situation such as that in the present case would render
Article 3(3) redundant.
59.      In addition, account must be taken of the fact that Article 10, as an exception, must be interpreted strictly. (19) Indeed, it is apparent from the travaux préparatoires that the initial Commission proposal did not mention either the concept of ‘specific and exceptional reasons’ or Article 10(a) to (g) of Directive 2005/26. (20) That concept and those provisions were added on the Council’s initiative. It follows from the statement of the Council’s reasons that it considered that the Commission’s initial proposal for Article 10 of that
directive was too broad. (21)
60.      In that context, reference should be made to the judgment in Angerer, (22) in which the Court held that the general scheme, purpose and origin of Directive 2005/36 preclude a broad interpretation of the concept of ‘specific and exceptional reasons’. (23) In addition to the fact that the other conditions for the application of Article 10(d) of that directive have clearly not been met in the present case, I can only concur with the Court’s position. I do not see how that provision can be interpreted in such a way that its scope covers the circumstances of the present case.
61.      For the reasons set out above, I am of the opinion
that Article 10(d) of Directive 2005/36 is not intended to apply to the circumstances of the present case.
62.      Having regard to the foregoing considerations, it must be found, at that stage of the analysis, by way of an interim conclusion, that neither the automatic system of recognition nor the general system of recognition is applicable to the present case.
63.      The fact that no provision of Directive 2005/36 covers a situation such as that described by the referring court opens, in principle, the possibility of having direct recourse to the provisions of primary law, and more specifically, to Articles 45 TFEU and 49 TFEU, governing the free movement of workers and the right of establishment, (24) which I shall examine in detail below on in the present Opinion.
D.      Whether the applicant in the main proceedings can rely on fundamental freedoms
64.      It follows from the above analysis that Directive 2005/36 is not applicable in a situation where a professional who is a national of the European Union wishes to establish him or herself in another Member State without being able to prove that he or she has three years’ professional experience in the Member State which recognised the third-country qualification required by Article 3(3) of that directive. (25)
65.      That being said, it should be recalled that it is not the purpose of Directive
2005/36 to make the recognition of formal qualifications more difficult in situations falling outside its scope, nor may it have such an effect. (26) The system of automatic recognition provided for in that directive complements the rights guaranteed by the fundamental freedoms, but is no substitute for an assessment in the light of those provisions. Consequently, outside the scope of that directive, (27) including where the conditions for the recognition of professional qualifications are not satisfied, (28) the professional in question can rely on the fundamental freedoms. (29)
66.      As the Court held in its judgment in Vlassopoulou, (30) even if applied without any discrimination on the basis of nationality, national requirements concerning qualifications may have the effect of hindering nationals of the other EU Member States, in the exercise of their right of establishment, (31) and the subsequent case-law has reached the same conclusions as regards the free movement of workers. (32) Consequently, a Member State of the European Union which receives a request to admit a person to a profession to which access, under national law, is contingent
upon possession of a diploma or a professional qualification must take into consideration the diplomas, certificates and other evidence of formal qualifications, as well as relevant experience, by making a comparison between, on the one hand, the skills certified by those qualifications and that experience and, on the other, the knowledge and qualifications required by the national rules. (33)
67.      In the judgment in Hocsman, (34) the Court held that the principles of recognition established in the judgment in Vlassopoulou also apply to qualifications obtained in a third country. The judgment in Hocsman concerned a doctor whose Argentine diploma in basic medicine had been recognised as equivalent to the national diploma in a Member State, thus allowing him to pursue specialist studies in that State and obtain
a specialist diploma there,
which would have been recognised under EU law as equivalent if the basic diploma had also been awarded in a Member State. In that context, it is important to note that, in the judgment in Haim referred to above, the Court reiterated the validity of the principles developed in that case-law, notwithstanding the finding that unilateral recognition by a Member State of qualifications issued by third countries is not capable of binding the other EU Member States. (35)
68.      The consequence of that case-law is that, when assessing the knowledge and qualifications of a professional in situations falling outside the scope of Directive 2005/36, the host Member State must take into consideration all the relevant documentation concerning the knowledge acquired in and qualifications issued by other EU Member States, (36) in particular the documentation relating to equivalence, regardless of where the training was provided, including in third countries, and irrespective of the name given to that training in another Member State or in a third country, and that host Member State must also take into consideration all relevant professional experience, in particular that acquired in the context of specialised training. (37)
69.      If that comparative examination results in the finding that the knowledge and qualifications correspond to those required by the national provisions, the Member State must recognise the qualifications as fulfilling the requirements laid down by those provisions. (38) Only objective differences may be taken into consideration in the course of the comparative examination. (39) If the applicant’s knowledge and qualifications, attested by the diploma and relevant work experience are not equivalent, or only partially correspond, to those required by the host Member State, that State must specify which training is lacking in order for the applicant to complete or supplement the training. (40) Compensation measures imposed by the host Member State must not be disproportionate. (41)
70.      I take the view
that a different interpretation would not be capable of facilitating the effective exercise of the fundamental freedoms guaranteed by the TFEU. In that regard, it should be recalled that EU law imposes an obligation to state the reasons for national decisions affecting the exercise of a fundamental freedom conferred on individuals by the Treaty. (42) Accordingly, an applicant, such as the applicant in the main proceedings, must be able to ascertain the reasons on which refusal is based, such as which training he or she lacks. (43)
71.      It is settled case-law that failure to recognise knowledge and qualifications acquired in another EU Member State may have the effect of hindering the free movement and establishment of professionals, even when national rules are applied in an indiscriminate manner in relation to nationality. (44) The host Member State cannot therefore disregard knowledge and qualifications acquired in another EU Member State. I consider that the same must apply to the failure to recognise knowledge and qualifications acquired in a third country which are recognised as equivalent by another Member State, and that the host Member State therefore cannot disregard those qualifications. In particular, the provisions of national law adopted in that connection must not constitute an unjustified obstacle to the effective exercise of the fundamental freedoms guaranteed by EU law. (45)
72.      I consider that, in a situation such as that in the present case, in which specialist medical training received by a professional who is a Union citizen satisfies, in itself, the conditions for automatic recognition under Directive 2005/36, and in which the basic training received in a third country has been recognised as equivalent by another Member State, the scope for restricting fundamental freedoms in a justified manner is limited. That is all the more true because, under Article 2(2) of that directive, when unilaterally recognising professional qualifications obtained in third countries, the Member States are required to respect the ‘minimum training conditions’ laid down for the profession of doctor, which means that, in principle, the protection of public health and safety in the European Union must not be compromised. With that in mind, I seriously question whether it would not be fair and appropriate to consider that, in such circumstances, there is a presumption that the basic training is equivalent in the host Member State. (46) In that regard, I would note that none of the interested parties has put forward convincing arguments which call into question such an interpretation.
73.      In any event, the host Member State cannot rely on practical or administrative difficulties in order to justify not carrying out the assessment it is required to carry out in accordance with the judgment in Vlassopoulou. (47) The fundamental freedom of movement for workers and freedom of establishment must be interpreted as requiring the host Member State to carry out an assessment of the knowledge and training attested by the professional qualifications of an applicant. In so doing, the host Member State must, as I have stated in the present Opinion, take into consideration all diplomas, certificates and other evidence of formal qualifications, as well as relevant experience. Refusal to make such an assessment on the grounds of practical or administrative difficulties would in itself constitute an unjustified restriction on the abovementioned freedoms.
VI.    Conclusion
74.       In the light of all the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Conseil d’État (Council of State, France) as follows:
Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications
must be interpreted as meaning that
the competent authorities of a Member State must recognise, under the system of automatic recognition defined in Article 21 of that directive, evidence of a formal qualification as a specialised doctor issued in another Member State and referred to in point 5.1.2 of Annex V to that directive, only where the doctor holding that evidence of a formal qualification also has evidence of a formal qualification in basic medical training issued by a Member State and referred to in point 5.1.1 of Annex V to that directive. This interpretation is without prejudice to the possibility, in the absence of such evidence of a formal qualification in basic medical training, of recognising evidence of a formal qualification as a specialised doctor on the basis of the general system for the recognition of evidence of training defined in
Chapter
I of Title
III of Directive 2005/36 or, where appropriate, on the basis of Article 45 or Article 49 TFEU.
1      Original language: French.
2      OJ 2005 L 255, p. 22.
3      See judgments of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija (C‑166/20, EU:C:2021:554, paragraph 25), and of 3 March 2022, Sosiaali- ja terveysalan lupa- ja valvontavirasto (Basic medical training) (C‑634/20, EU:C:2022:149, paragraph 34).
4      Von Lewinski, K., Europarecht (Schulze/Janssen/Kadelbach), 4th edition, Baden-Baden 2020, paragraph 72.
5      See judgment of 30 April 2014, Ordre des architectes (C‑365/13, EU:C:2014:280, paragraphs 21 and 22).
6      See judgments of 2 September 2021, LG and MH (Self-laundering) (C‑790/19, EU:C:2021:661, paragraph 47), and of 16 March 2023, Colt Technology Services and Others (C‑339/21, EU:C:2023:214, paragraph 39).
7      As I have indicated in point 14 of this Opinion, those qualifications are the ‘Zeugnis über die Ärztliche Prüfung’ and the ‘Zeugnis über die Ärztliche Staatsprüfung und Zeugnis über die Vorbereitungszeit als Medizinalassistent, soweit diese nach den deutschen Rechtsvorschriften noch für den Abschluss der ärztlichen Ausbildung vorgesehen war’.
8      Emphasis added.
9      Emphasis added.
10      Emphasis added.
11      Judgment of 9 February 1994 (C‑319/92, EU:C:1994:47, paragraphs 20 and 21).
12      OJ 1978 L 233, p. 10.
13      Article 1(4) of Directive 78/687 provided as follows: ‘Nothing in this Directive shall prejudice any facility which may be granted in accordance with their own rules by Member States in respect of their own territory to authorise holders of diplomas, certificates or other evidence of formal qualifications which have not been obtained in a Member State to take up and pursue the activities of a dental practitioner.’ (emphasis added).
14      Emphasis added.
15      Emphasis added.
16      See, in that regard, Bethourd, F., La reconnaissance des qualifications professionnelles, Dossiers de droit européen, No 30, Geneva 2016, p. 104 et seq.
17      See, to that effect, User Guide – Directive 2005/36/EC: All you need to know about recognition of professional qualifications, p. 25.
18      See judgment of the EFTA Court of 25 March 2021, Lindberg (E-3/20, EFTA Court Report 2021, paragraph 60).
19      See Opinion of Advocate General Kokott in Commission v United Kingdom (C‑346/08, EU:C:2009:772, point 15).
20      Proposal for a Directive of the European Parliament and of the Council on the recognition of professional qualifications (COM(2002) 119 final) (OJ 2002 C 181 E, p. 183).
21      Common Position (EC) No 10/2005 of 21 December 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council on the recognition of professional qualification (OJ 2005 C 58 E, pp. 1 and 119).
22      Judgment of 16 April 2015 (C‑477/13, EU:C:2015:239).
23      Judgment of 16 April 2015, Angerer (C‑477/13, EU:C:2015:239, paragraph 27 et seq.).
24      See judgment of 2 March 2023, A (Nursery school teacher) (C‑270/21, EU:C:2023:147, paragraph 66).
25      See, to that effect, User Guide – Directive 2005/36/EC: All you need to know about recognition of professional qualifications, pp. 8, 25 and 28.
26      See judgment of 22 January 2002, Dreessen (C‑31/00, EU:C:2002:35, paragraph 26).
27      See judgment of 6 October 2015, Brouillard (C‑298/14, EU:C:2015:652, paragraph 46).
28      See judgment of 22 January 2002, Dreessen (C‑31/00, EU:C:2002:35, paragraph 31).
29      See, to that effect, Zaglmayer, B., Anerkennung von Gesundheitsberufen in Europa, Vienna 2016, p. 184 et seq.; see also judgments of the EFTA Court of 25 March 2021, Lindberg (E-3/20, EFTA Court Report 2021, paragraphs 60 and 61) and Martinez Haugland (E-4/20, EFTA Court Report 2021, paragraph 83).
30      Judgment of 7 May 1991, Vlassopoulou (C‑340/89, EU:C:1991:193; ‘the judgment in Vlassopoulou’).
31      Judgments in Vlassopoulou (paragraph 15), and of 8 May 2008, Commission v Spain (C‑39/07, EU:C:2008:265, paragraph 37).
32      See judgment of 6 October 2015, Brouillard (C‑298/14, EU:C:2015:652, paragraph 52).
33      See judgment in Vlassopoulou (paragraph 16).
34      Judgment of 14 September 2000 (C‑238/98, EU:C:2000:440).
35      Judgment of 9 February 1994, Haim (C‑319/92, EU:C:1994:47, paragraph 26).
36      See judgment of 6 October 2015, Brouillard (C‑298/14, EU:C:2015:652, paragraph 54).
37      See, in that regard, Peeters, M., ‘Free Movement of Medical Doctors: The New Directive 2005/36/EC on the Recognition of Professional Qualifications’, European Journal of Health Law, Vol. 12, No 4, October 2005, p. 377 et seq. who argues that a Member State cannot simply refuse to recognise a diploma obtained in a third country.
38      See judgments of 6 October 2015, Brouillard (C‑298/14, EU:C:2015:652, paragraph 57), and of 3 March 2022, Sosiaali- ja terveysalan lupa- ja valvontavirasto (Basic medical training) (C‑634/20, EU:C:2022:149, paragraph 43).
39      See judgment of 6 October 2015, Brouillard (C‑298/14, EU:C:2015:652, paragraph 56).
40      See judgment of the EFTA Court of 25 March 2021, Lindberg (E-3/20, EFTA Court Report 2021, paragraph 70).
41      See judgment of 3 March 2022, Sosiaali- ja terveysalan lupa- ja valvontavirasto (Basic medical training) (C‑634/20, EU:C:2022:149, paragraph 45).
42      See judgments of 15 October 1987, Heylens and Others (222/86, EU:C:1987:442, paragraph 17); judgment in Vlassopoulou (paragraph 22); and of 2 April 1998, Norbrook Laboratories (C‑127/95, EU:C:1998:151, paragraph 103).
43      See judgment of the EFTA Court of 25 March 2021, Lindberg (E-3/20, EFTA Court Report 2021, paragraph 69).
44      See judgment of 6 October 2015, Brouillard (C‑298/14, EU:C:2015:652, paragraph 53).
45      See judgment of 6 October 2015, Brouillard (C‑298/14, EU:C:2015:652, paragraph 52).
46      See, by analogy, judgment of the EFTA Court of 25 March 2021, Martinez Haugland (E-4/20, EFTA Court Report 2021, paragraph 51).
47      See, inter alia, judgments of 16 December 1986, Commission v Greece (124/85, EU:C:1986:490, paragraph 12); of 12 July 1990, Commission v Italy (C‑128/89, EU:C:1990:311, paragraph 22); of 27 November 2008, Papillon (C‑418/07, EU:C:2008:659, paragraph 54); and of 3 July 2019, Delfarma (C‑387/18, EU:C:2019:556, paragraph 30).