CELEX: 61980CC0246
Language: en
Date: 1981-06-25 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 25 June 1981. # C. Broekmeulen v Huisarts Registratie Commissie. # Reference for a preliminary ruling: Commissie van Beroep Huisartsgeneeskunde 's-Gravenhage - Netherlands. # Right of establishment: Doctors. # Case 246/80.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 25 JUNE 1981 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      In the request for a preliminary ruling which we have to deal with today we are essentially required to define the substance and scope of Article 2 of Council Directive 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (Official Journal L 167 of 30. 6. 1975, p. 1). Article 2 provides as follows:
      “Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 1 of Directive 75/363/EEC and which are listed in Article 3, by giving such qualifications, as far as the right to take up and pursue the self-employed activities of a doctor is concerned, the same effect in its territory as those which the Member State itself awards.”
      On 30 June 1979 as a result of his studies in the Faculty of Medicine at the Catholic University of Louvain, Belgium, the applicant in the main proceedings, Dr Broekmeulen, a Netherlands national, obtained the Wettelijk Diploma van Doctor in de Genees-, Heel- en Verloskunde (diploma of doctor of medicine, surgery and obstetrics) referred to in Article 3 (b) of the above-mentioned directive. The diploma entitles him to go into general practice in Belgium.
      Under the provisions of Article 2 of the Netherlands Law regulating the practice of medicine (Wet Regelende de Uitoefening der Geneeskunst), the Secretary of State for Health and the Environment granted him authorization to practise medicine in the Netherlands by a decision dated 18 September 1979. He took his doctor's oath on 19 October 1979.
      By a letter of 14 November 1979 Dr Broekmeulen applied for enrolment on the register of recognized general practitioners. In this connection it ought to be pointed out that in the Netherlands the maintenance of that register, the conditions for registration and the training of general practitioners (huisarts) are governed by the statutes, internal rules and orders made thereunder of the Royal Netherlands Society for the Promotion of Medicine (Koninklijke Nederlandsche Maatschappij tot Bevordering der Geneeskunst, hereinafter referred to as “the Society”), which is a private association.
      If a doctor is not enrolled on the register it is practically impossible for him to establish himself in the Netherlands as a general practitioner since a Royal Decree of 4 January 1966 (Verstrekkingenbesluit, Staatsblad No 3) governing benefits for patients covered by the social security scheme, as amended by the Royal Decree of 15 August 1973 (Staatsblad No 428), defines the term “general practitioner” as a “doctor enrolled on the register of general practitioners recognized by the Royal Netherlands Society for the Promotion of Medicine”. There is thus no possibility for a doctor who is not so registered to carry on a practice with patients covered by the social security scheme. Furthermore, the carrying-on of a private practice has been made extremely difficult, not to say impossible, for all general practitioners, whether they are members of the Society or not, since many private insurance companies define the term “general practitioner” in their policies in the same way.
      The Huisarts Registratie Commissie (General Practitioners Registration Committee, hereinafter referred to as “the Registration Committee”) is responsible for dealing with applications for registration. By a letter of 18 March 1980 the Registration Committee refused Dr Broekmeulen's application for registration after the Commissie van Uitvoering Huisartsenerkenning (General Practitioners Recognition Committee), to which the application had been submitted, had delivered an unfavourable opinion.
      The refusal was based on the ground that enrolment on the register was not possible under Order No 1-1977 of the College voor Huisartsgeneeskunde (Council for General Medicine), so long as the applicant had not undergone a year's training as a general practitioner (huisarts) as laid down by Order No 1-1974 of the Council for General Medicine.
      Order No 1-1977, which was still in force at that time, contained the following provisions in the preamble and in Article 1 :
      “The Council for General Medicine convening on 21 January 1977; having regard to Articles 2 to 2c inclusive of the Law of 1 June 1865, Staatsblad 60 (Wet Uitoefening Geneeskunst [Law on the practice or medicine]) and the Order of 27 August 1965, Staatsblad 436 (Toelating Buitenlandse Artsen
      [admission of foreign doctors]);
      Having regard to the entry into force on 20 December 1976 of Directives 75/362 EEC and 75/363/EEC of the European Community concerning the right of establishment of doctors within the Community;
      Taking note of the desirability, on the one hand, of general rules on the recognition and registration of doctors not having Netherlands nationality and qualifications and, on the other hand, of rules for nationals of Member States of the European Community who are in possession of one of the medical diplomas recognized by virtue of the directives of the European Community; whereas, pending agreement on the application of the said directives in relation to general medicine, it seems proper to limit the period of validity of the following order;
      Having heard the views of the General Practitioners Registration Committee;
      Having regard to Articles 1107 and 1109 of the internal rules of the Royal Netherlands Society for the Promotion of Medicine;
      has decided
      that doctors with foreign diplomas who have been authorized to practise medicine in the Netherlands shall be enrolled on the register of recognized general practitioners in accordance with the following provisions:
      Article 1
      Nationals of the other Member States of the European Community who are in possession of one of the diplomas in medicine awarded in the other Member States and recognized by virtue of EEC Directives 75/362/EEC and 75/363/EEC and who submit to the General Practitioners Registration Committee proper evidence that they have been authorized to practise medicine in the Netherlands shall at their request be enrolled on the register of recognized general practitioners.”
      By a letter of 10 June 1980 Dr Broekmeulen appealed within the specified period against the rejection of his application by the Registration Committee to the Commissie van Beroep Huisartsgeneeskunde (Appeals Committee for General Medicine, hereinafter referred to as “the Appeals Committee”), which under the rules of the Society has juridisction to hear such appeals.
      Placing reliance on the preamble to the aforesaid order, he argued that Article 1 thereof also applies to Netherlands nationals who have obtained a diploma of doctor of medicine in a Member State of the European Community other than the Netherlands. In the event of the Appeals Committee's rejecting that argument, Dr Broekmeulen argued in the alternative that the order was not applicable to him on account of an infringement of Directives 75/362/EEC and 75/363/EEC. His right to demand enrolment on the register of recognized general practitioners flowed directly from those directives, notwithstanding the fact that he had not undergone a year's training in the Netherlands in general medicine. Finally, he submitted
      that regard should be had to Article 1119 of the internal rules of the Society, whereby a doctor who has not undergone the training in general medicine may nevertheless be enrolled on the register if, in the opinion of the Registration Committee, ne possesses particular theoretical and practical qualifications. Dr Broekmeulen considered that he had satisfied those requirements.
      The Appeals Committee, sharing the view of the defendant Registration Committee that the registration applied for could not be granted under Article 1119 and that the interpretation of Article 1 of the order advocated by the applicant was incorrect, stayed the proceedings by an interlocutory decision of 21 October 1980 and referred the following question to the Court for a preliminary ruling under Article 177 of the EEC Treaty:
      “Does it follow from Directives 75/362/EEC and 75/363/EEC (Official Journal L 167 of 30. 6. 1975) that a Netherlands national who has obtained in Belgium the Wettelijk Diploma van Doctor in de Genees-, Heel- en Verloskunde [diploma of doctor of medicine, surgery and obstetrics] and who is consequently entitled to practise in Belgium as a general practitioner has the right, on becoming established in the Netherlands, to be enrolled on the register of recognized general practitioners kept by the Royal Netherlands Society for the Promotion of Medicine without first having undergone training in the Netherlands as a general practitioner? For the purpose of this question it is assumed that by virtue of mandatory provisions of Netherlands law enrolment on the said register is possible only after that training has been undergone and that a doctor may practise in the Netherlands as a general practitioner only after enrolment on the said register.”
      I — Admissibility
      Before I express an opinion on this question, a preliminary point concerning admissibility must be discussed, namely whether the Appeals Committee is entitled to refer a case to the Court under Article 177 of the EEC Treaty.
      The Appeals Committee considers that within the domestic context it is the highest judicial body called upon to decide inter alia who may be enrolled on the register of recognized general practitioners in the Netherlands; it therefore regards itself as bound under Article 177 of the EEC Treaty to refer to the Court questions concerning the interpretation of Community law which are relevant to its decision. Likewise, the parties in the main proceedings, as well as the Netherlands Government and the Commission, which have both submitted their views on the case, argue, albeit on different grounds, that the Appeals Committee should be regarded as a court or tribunal entitled to request a preliminary ruling under Article 177 of the EEC Treaty.
      The view put forward by the body which submitted the reference and by the parties to the proceedings must, I think, be accepted, having regard to the spirit and intendment of Article 177 of the EEC Treaty, irrespective of whether that body is or is not a court or tribunal under the provisions of the Netherlands Constitution.
      In examining the question whether a decision-making body is to be regarded as a court or tribunal within the meaning of Article 177 of the EEC Treaty, the general rule must prevail that the concepts of Community law are to be classified within the independent legal order of the Communities and thus fall to be interpreted according to the general scheme, requirements and objectives of the Community. Only where there is an express reference to national law or it is clear from the circumstances of the case that national law applies may this general rule be departed from. In its decisions the Court has consistently affirmed that the purpose of Article 177 is to ensure the uniform interpretation of Community law in all the Member States by means of cooperation between the Court of Justice and the courts of the Member States. Therefore the term used in Article 177, “Gericht eines Mitgliedstaats” (in the French version of the Treaties “juridiction d'un des États Membres”, in the Italian version “juridizione di uno degli Stati Membri”, in the English version “any court or tribunal of a Member State”, in the Dutch version “rechterliche instantie van een der Lid-Staten”), is mainly intended to preclude applications to the Court under that provision from, on the one hand, courts of non-member States or international courts and, on the other hand, the parties to proceedings pending before a national court, as well as Member States and their authorities or institutions of the Communities.
      This does not mean to say that the aforesaid term constitutes a reference to national law in the sense that only those decision-making bodies recognized as courts or tribunals by the law of the Member State may request a preliminary ruling. In this connection it should not be overlooked that the system of courts and administration in the Member States is largely based on common principles although affected by historical accident and influenced by differing legal concepts, as Mr Advocate General Gand stressed in his Opinion in Case 61/65 G. Vaassen (née Göbbels) ν Management of the Beambtenfonds voor het Mijnbedrijf [1966] ECR 280. Thus, in order to ensure the uniform interpretation and application of Community law, the essential characteristics of a “court or tribunal” within the meaning of Article 177 of the EEC Treaty must be given a uniform definition. For the purposes of such a definition it is, however, merely necessary to establish whether, in accordance with the general principles governing the administration of justice in the Member States, those authorities referring matters to the Court possess the characteristics of bodies which have to apply legal rules in the adjudication of disputes.
      If on the other hand the term in question were to be construed as a reference to national law, Member States would have it in their power to take away from certain decision-making bodies which have to apply Community law the right, and in some cases, the obligation to request a preliminary ruling, by making provision to that effect within their system of administration of justice. This would lead eventually to the fragmentation of Community law, which is precisely what the procedure under Article 177 is designed to avoid. Thus the law of the Member States can be relevant only in so far as that law is able to determine whether the minimum characteristics required by Community law are present in a given case.
      In this context the question — not, I think, finally resolved in these proceedings — as to whether the Appeals Committee is a tribunal of last instance or whether the persons concerned may also appeal to the ordinary courts of law against an adverse decision of the Registration Committee may remain open. Even if such a possibility of judicial review exists, that does not mean that the decision-making body subject to that review is not itself a court; it merely means that that body is not a court of last instance having a duty to submit a reference, a question which does not need to be decided in this case.
      As regards determining the general minimum characteristics which must be present so that the definition of a court or tribunal within the meaning of Article 177 is satisfied, the judgment of the Court in Case 61/65 G. Vaassen (née Göbbels) ν Management of the Beambtenfonds voor het Mijnbedrijf [1966] ECR 261 is instructive; there too the Court had to decide whether the requesting authority was in the nature of a court. In that case the Court ruled that the Netherlands Scheidsgerecht van het Beambtenfonds voor het Mijnbedrijf (Arbitration Tribunal of the Fund for Non-Manual Workers employed in the Mining Industry) was indeed in the nature of a court for the following reasons which I should like briefly to call to mind:
      
               —
            
            
               The Scheidsgerecht was properly constituted under Netherlands law, being governed by the rules of the Beambtenfonds voor het Mijnbedrijf, which rules and any subsequent amendments thereto must be approved by two ministers;
            
         
               —
            
            
               It was the duty of the minister responsible to appoint the members of the tribunal, to designate its chairman and to lay down its rules of procedure;
            
         
               —
            
            
               The Scheidsgerecht was a permanent body called upon to determine disputes defined in general terms in the rules of the Beambtenfonds;
            
         
               —
            
            
               The tribunal was bound by rules of procedure similar to those used by the ordinary courts of law; the persons referred to in the rules of the Beambtenfonds were compulsorily members of the Beambtenfonds by virtue of a regulation laid down by a body established under public law and were bound to take any disputes between themselves and their insurer to the Scheidsgerecht, which was bound to apply rules of law.
            
         Those characteristics, from the totality of which the Court inferred that the Scheidsgerecht was empowered to submit a reference, are also to be found in the case of the Appeals Committee which submitted the present reference. Admittedly, its composition, function and procedure all derive from the statutes and internal rules of the Society, which is a private association, and from the orders issued thereunder. Of decisive importance, however, is the fact that under Article 26 (2) of the statutes, upon which the internal rules are based, those provisions of the internal rules which relate to the recognition and registration of general practitioners may not be changed without the approval of the minister responsible for higher education and health, so that to that extent there is government supervision over the composition, function and procedure of the Appeals Committee. Another factor to be borne in mind in this context is that as a result of the Royal Decree which I have already mentioned (Verstrekkingenbesluit) the payment of benefits to the insured person and the payment of the doctor's fees are subject to the doctor's being enrolled on the register of recognized general practitioners.
      Pursuant to the internal rules, the aforesaid ministers also have to appoint two members of the Appeals Committee and the chairman thereof, for which post “a high-ranking judge is preferred”. The independence of the Appeals Committee ist also guaranteed to some extent by the provisions governing the composition of the rest of the Committee, whereby three members must be appointed by the Netherlands medical faculties and three members by the Society itself.
      Finally, pursant to the internal rules, the Appeals Committee is permanent body called upon to determine disputes brought before it which are defined in general terms in those rules.
      The procedure to be observed before the Appeals Committee is also laid down, albeit in summary form, in those rules, which provide inter alia that the parties to a dispute must at their request be heard and that the applicant may be represented by a lawyer in an application against the Registration Committee.
      Furthermore, the Appeals Committee adjudicates upon contested decisions concerning the registration of general practitioners on the basis of the provisions contained in the internal rules and on the basis of requirements laid down by order; thus it does not operate on general equitable principles ex aequo et bono.
      
      It must also be borne in mind, however, that those rules, which are subject to government control, and on the basis of which the Appeals Committee hears cases brought before it, are binding not only on members of the Society — 93% of general practitioners — but are of general application. That is a result of the status which the register of recognized general practitioners has acquired as a result of the Verstrekkingenbesluit [Decree concerning benefits].
      Thus on the basis of those characteristics it may be said that the Appeals Committee is to be regarded as a permanent tribunal endowed with powers of a public nature which adjudicates upon disputes according to legal rules after a proper procedure in which the parties are given a hearing. In agreement with all the parties to these proceedings, I consider that to be sufficient to regard the Appeals Committee as a court or tribunal empowered to submit a reference to the Court of Justice under Article 177.
      That conviction is strengthened when it is borne in mind that, de facto if not de jure, the Appeals Committee takes the place of the ordinary courts of law and is, as we have heard, de facto the court of last instance. The purpose of Article 177 of the EEC Treaty, namely to ensure that Community law produces the same effects in all Member States, would be defeated if the right to submit a reference were denied in such a case.
      II — The substance of the case
      The Appeals Committee has to decide the question — raised in the alternative by the applicant in the main proceedings — whether Article 1 of Order No 1-1977 contravenes Council Directives 75/362/EEC and 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (Official Journal L 167 of 30. 6. 1975, p. 14). According to the Appeals Committee, it is clear from that provision that only nationals of a Member State other than the Netherlands who have obtained a diploma of doctor of medicine in a Member State other than the Netherlands may, on application, be enrolled on the register of recognized general practitioners, without having to undergo in the Netherlands the one-year training in general medicine, provided also that they submit to the Registration Committee the legally required evidence that they have received authorization, under Article 2 of the Netherlands law relating to the practice of medicine, to practise in the Netherlands. On that view, a Netherlands national who has obtained a diploma of doctor of medicine in another Member State entitling him to enter general practice in that Member State must be debarred from practising in the Netherlands unless he has himself enrolled on the above-mentioned register, in which case he must satisfy the requirement of a one-year period of training. With a view to deciding whether that provision as interpreted above is compatible with Community law, the Appeals Committee has referred to the Court a question concerning the interpretation of the aforementioned directives, a question which gives rise to a number of subsidiary questions.
      
               1.
            
            
               In this connection it must be borne in mind that in accordance with the previous decisions of the Court the clear and unconditional provisions of Article 2 of Directive 75/362/EEC, which leave no margin of discretion to the Member States, have direct effect in the sense that they may be relied upon before national courts or authorities. The primacy of Community law dictates, therefore, that conflicting national law may not be applied by the courts or authorities of the Member States.
               As the Court has already held in a number of judgments, including the judgment of 12 December 1974 in Case 36/74 B. N. O. Walrave and I. J. N. Koch ν Association Union Cycliste Internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo ([1974] ECR 1405) and the judgment of 14 June 1976 in Case 13/76 Gaetano Donà ν Mario Maniero ([1976] ECR 1333), it is also important, to note that those parts of Community law which are designed to ensure compliance with the prohibition of discrimination on grounds of nationality have effect even in areas where the State is not involved, or at least not directly involved, as is the case for example with collective agreements for the provision of labour or services.
            
         
               2.
            
            
               The further question then arises whether a national of a Member State may invoke in his own Member State the provisions contained in the EEC Treaty relating to the free movements of persons, and Directive 75/362/EEC adopted in implementation of those provisions, in order to put to use his qualifications obtained in a different Member State. This question, which involves identifying which class or classes of persons fall within the purview of the directive, requires an affirmative answer merely on the strength of an examination of the wording of Article 2. There it is stated that “each Member State shall recognize the diplomas ... awarded to nationals of Member States by the other Member States in accordance with Article 1 of Directive 75/363/EEC and which are listed in Article 3”. A Member State's own nationals are not expressly excluded from this provision.
               Moreover, such an interpretation is greatly reinforced, as the Commission rightly pointed out, by a staterpent concerning the definition of the persons covered by the directives in the minutes of the Council Meeting at which the directives were adopted. In that statement the Council expressly confirmed that “freedom of establishment, particularly for the holders of certificates obtained in other Member States, must be accorded on the same terms to naţionals, of other Member States and to nationals of the Member State concerned as is the case with other directives”.
               Further confirmation that nationals of all Member States who satisfy the conditions laid down in the directive for its application must be able to invoke its provisions, even against the State of which they are nationals, is supplied by the provisions of the Treaty guaranteeing the free movement of persons, which provisions underlie the directive and are themselves a manifestation of the general prohibition of discrimination on the grounds of nationality. In the same vein are the General Programmes of 18 December 1961 for the abolition of restrictions on the freedom to provide services and the freedom of establishment (Official Journal, English Special Edition, Second Series IX, pp. 3 to 10). Those provisions, which are of fundamental importance to the common market, are intended to ensure the mobility of labour within the market and to extend to all nationals of Member States the possibility of carrying on economic activities through the establishment of enterprises or by the provision of services throughout the Community without discrimination on grounds of nationality. Thus, in the judgment of 7 February 1979 in Case 115/78 J. Knoors ν Secretary of State for Economic Affairs ([1979] ECR 399), which was a case involving similar facts, although it concerned a different liberalizing directive, the Court held that nationals of every Member State must be able to enjoy the benefits of the liberalizing measures contained in the directive, provided that they fall objectively within one of the situations covered by the directive, and that no difference in treatment on the basis of their residence or nationality is permitted. The present case calls for application of the principle enunciated in the Knoors judgment and echoed in the judgment of 7 February 1979 in Case 136/78 Ministere Public ν Vincent Auer ([1979] ECR 437), namely that, within the scope of the Treaty, the granting of more favourable treatment to foreign nationals than to a Member State's own nationals is equally incompatible with the prohibition of discrimination laid down by Community law. The applicant in the main proceedings was and is, as we have seen, in the same situation, from an objective point of view, as a Belgian national holding the same diploma. If the applicant, solely on account of his Netherlands nationality, were to be treated differently from a Belgian or a national of another Member State in the same position, that would amount to unlawful discrimination against the applicant solely on account of his nationality, which would be incompatible with the aims of the free movement of persons guaranteed by Community law. Accordingly, it may be said — in agreement with the applicant, the defendant, the Netherlands Government and the Commission — that the scope of Directive 75/362/EEC extends to persons who are nationals of the Member State in which they wish to practise, provided that they fall objectively within one of the situations envisaged by the directive.
            
         
               3.
            
            
               Thus it remains to examine the factual scope of the directive to see whether the “huisarts” [general practitioner] in fact falls within the purview of the directive and, if so, what legal consequences flow from the directive.
               The defendant in the main proceedings takes the view on this point that the “huisarts”, introduced in the Netherlands in 1973, does not fall within the terms of Directives 75/362/EEC and 75/363/EEC since, in addition to the “university certificate of doctor” referred to in Article 3 (h) of Directive 75/362/EEC, the person concerned must undergo a special period of training of one year and therefore cannot be regarded as a “doctor” within the meaning of Chapter II of that directive. Neither is the “huisarts” mentioned as a doctor of specialized medicine in Chapters III and IV of the directive. The defendant therefore takes the view that the only possibility is to apply Article 8 of Directive 75/362/EEC to the “huisarts” by analogy. By virtue of that provision nationals of Member States wishing to acquire one of the diplomas, certificates or other evidence of formal qualifications of specialist doctors not referred to in Chapters III and IV “may be required by a host Member State to fulfil the conditions of training laid down in respect of the specialty by its own law, regulation or administrative action”.
               That view cannot, however, be accepted, having regard to the historical development and general structure of the directives in question and to their meaning and purpose. In a number of Member States, as we have heard, the late 1960s and early 1970s saw the emergence of a tendency to extend the training of general practitioners. For instance, in the Netherlands, by an amendment to the Verstrekkingenbesluit and by Order No 1-1974 the profession of “huisarts” was instituted in its present form. The Netherlands Government has told us that it informed the Council of this internal legal development as early as 1973 when the directives were still under discussion. At the same time, the Netherlands Government, not wishing to delay the issue of the directives, gave an assurance that no such additional training would be required of holders of foreign diplomas listed in Article 3 of Directive 75/362/EEC who wished to practise in the Netherlands.
               As the Netherlands Government and the Commission rightly pointed out, it is in the light of these facts that the express statement entered in the minutes of the Council meeting must be seen. The Council noted that in a number of Member States a general tendency is emerging which lays stress upon the role of the general practitioner and the importance of this training. The Council therefore expressly requested the Commission to investigate the problems arising from that trend and to submit appropriate proposals. So it cannot be inferred from that statement, contrary to the defendant's view, that the Council's intention was to exclude “huisarts” from the purview of the directives which entered into force after the relevant amendment to Netherlands law.
               A glance at the scheme of the directives, which are meant to facilitate the effective exercise of the right of establishment and the freedom to provide services, will clearly show that the Council's intention was rather to make a distinction between the specialists covered by Chapters III and IV of Directive 75/362/EEC and the non-specialists falling within Chapter II of that directive. That distinction was maintained in Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors, which was issued in conjunction with the above-mentioned directive. Directive 75/363/EEC provides inter alia for a minimum period of specialized training lasting from three to five years in respect of the various forms of specialized medicine. If the other training requirements mentioned in the directives have been satisfied the diplomas in specialized medicine referred to in Directive 75/362/EEC must be recognized by all Member States with the -result that the holders of such diplomas may establish a practice anywhere within the Community without being required to satisfy any further training requirements.
               But the same must also apply to the “doctors” mentioned in Chapter II of Directive 75/362/EEC, and there the Council clearly intends the term to be understood as referring to general practitioners who have one of the formal qualifications in medicine mentioned in Article 3 of Directive 75/362/EEC without additional training in a specialized form of medicine.
               In order to ensure that such diplomas, certificates and other evidence of formal qualifications are to be regarded as equivalent, Article 1 of Directive 75/363/EEC requires that the person concerned should have acquired the knowledge and experience mentioned therein. In particular, Article 1 (1) (d) states that suitable clinical experience should have been obtained in hospitals under appropriate supervision.
               But on presentation of such a diploma, awarded in a Member State and recognized as equivalent, general practitioners, like specialists, must be entitled to the effective exercise of the right of establishment and freedom to provide services. If it were considered lawful, as the arguments of the defendant in the main proceedings suggest, to require the holders of diplomas not awarded in the Netherlands to undergo additional training before practising as “huisarts”, the result would be that holders of diplomas awarded in other Member States would not be able to go into general practice in the Netherlands without undergoing further training, and here it should be remembered that some Member States award a diploma only after a lengthy period of training or, as in the case of Denmark, make a period of practical training a precondition of such an award. On the other hand, holders of the Netherlands “university certificate of doctor” mentioned in Article 3 (h) would be able to set up a practice in any of the other Member States even though they have not undergone the additional one year's training. I do not need to emphasize that such disparity of treatment cannot have been intended by the directive concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services.
               The purpose of the directive, which is based on Articles 49, 57, 66 and 235 of the EEC Treaty, is rather — and this is apparent not only from the title but also from the preamble — to enable “activities in the field of medicine to be taken up and pursued” through the recognition of equivalent medical qualifications, in order to make the free movement of workers and self-employed persons envisaged by the Treaty a reality. However, in the Netherlands, owing to the particular conditions prevailing there, general medicine may only be practised if the doctor concerned is enrolled on the register of recognized general practitioners and if, as a result, his services are recognized by the social security institutions and by private sickness insurers. Merely to place all the medical qualifications listed in Article 3 of Directive 75/362/EEC on an equal footing would not, as the Commission rightly pointed out, be sufficient to achieve the aims enunciated in the provisions relating to the free movement of persons since that would merely amount to an academic recognition of the diplomas and would have no appreciable practical value.
               Article 2 of Directive 75/362/EEC states that every Member State shall recognize the evidence of formal qualifications mentioned in Article 3 of the directive as having “as far as the right to take up and pursue the self-employed activities of a doctor is concerned, the same effect in its territory as those which the Member State itself awards”. It follows that that article can only be interpreted, contrary to the view taken by the defendant in the main proceedings, as meaning that holders of the diplomas in question have the right to practise as doctors, within the meaning of the directive, in every Member State without any additional training requirements.
            
         
               4.
            
            
               Finally, to mention one further argument, support for such an interpretation may be derived from Article 21 of the directive, whereby Member States which require their own nationals to complete a preparatory training period in order to become eligible for appointment as a doctor of a social security scheme may impose the same requirement on nationals of other Member States for a period of five years following notification of the directive; the training period may not, however, exceed six months. Whilst it is not immediately apparent from its wording that the provision, as the Commission stated, was designed to deal with the legal situation existing in the Federal Republic of Germany, it may nevertheless be inferred from that article that after a period of five years from the notification of the directive the requirement to complete a preparatory training period may no longer be imposed and even during that period only a preparatory training period of six months might be required.
            
         
               5.
            
            
               Furthermore, it should be mentioned that such an interpretation of the directive accords with existing legal and administrative practice in the Netherlands concerning the registration of foreign doctors who have obtained a diploma in another Member State. Accordingly, Belgian nationals having a Belgian diploma of doctor of medicine, surgery and obstetrics which entitles them to practise general medicine in Belgium, have upon making application always been enrolled on the register of general practitioners after obtaining authorization to carry on the profession of doctor in the Netherlands pursuant to Article 2 of the Netherlands Law regulating the practice of medicine.
               It is also interesting to note that Order No 4-1980 of the Council for General Medicine, which provided that in order to be enrolled on the register in question all holders of foreign medical diplomas would have to satisfy the same conditions as holders of Netherlands diplomas in medicine, did not obtain the approval of the responsible departments of the Netherlands Government because it conflicted with Directives 75/362/EEC and 75/363/EEC and thus did not enter into force.
               If a national of a Member State other than the Netherlands who possesses a diploma awarded in another Member State and listed under Article 3 of Directive 75/362/EEC cannot be required to undergo additional training, then, in the light of the judgments of the Court in the Knoors case (Case 115/78) and in the Auer case (Case 136/78), the same must apply to a Netherlands national who holds a diploma listed under Article 3 awarded in another Member State.
            
         
               6.
            
            
               Fears were expressed in the Knoors judgment that certain nationals of Member States might abuse the new freedoms ushered in by the Treaty in order to circumvent provisions of national law concerning the pursuit of professional activities. It is clear, however, from the factual and legal background of the present case that the danger alluded to does not exist. The danger of abuse is, in the first place, prevented by Directive 75/363/EEC concerning the coordination of the professional training of doctors, which lays down inter alia a minimum period of studies. It should also be noted that, as regards the present case, the period of training in the Nehterlands leading to the award of the university certificate of doctor lasts six years, which is the minimum period of training prescribed by Directive 75/363/EEC. In Belgium, however, the equivalent diploma may be awarded only after a period of study of seven years. Students who go to Belgian universities because of the restricted admission to universities in the Netherlands, must thus resign themselves to a longer period of training.
            
         III — In conclusion, I propose, therefore, that the following reply should be given to the question submitted:
      The effect of Article 2 of Council Directive 75/362/EEC of 16 June 1975 is that a Netherlands national who has obtained in Belgium the Wettelijk Diploma van Doctor in de Genees-, Heel- en Verloskunde [diploma of doctor of medicine, surgery and obstetrics], on being authorized to practise as a doctor in the Netherlands, is entitled to be enrolled on the register of recognized general practitioners kept by the Koninklijke Nederlandsche Maatschappij tot Bevordering der Geneeskunst [Royal Netherlands Society for the Promotion of Medicine], without previously having undergone a period of training in the Netherlands as “huisarts”.
      (
            1
         )	Translated from the German.