1 This request for a preliminary ruling concerns the interpretation of Articles 45 and 49 TFEU.
2 The request has been made in proceedings brought by A concerning the decision of the Sosiaali- ja terveysalan lupa- ja valvontavirasto (Licensing and Supervisory Authority for Social Affairs and Health, Finland) (‘Valvira’) to grant A authorisation to pursue in Finland, for a period of three years, the profession of doctor as a licensed professional, under the direction and supervision of a licensed doctor entitled to pursue that profession independently.
3 Article 1 of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22), as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 (OJ 2013 L 354, p. 132) (‘Directive 2005/36’), entitled ‘Purpose’, 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. This Directive also establishes rules concerning partial access to a regulated profession and recognition of professional traineeships pursued in another Member State.’
4 Article 4 of that directive, entitled ‘Effects of recognition’, provides, in paragraph 1 thereof, that ‘the recognition of professional qualifications by the host Member State shall allow 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’.
5 Article 10 of Directive 2005/36, entitled ‘Scope’ and falling under Chapter I of that directive, concerning the general system for the recognition of evidence of training, states, in point (b) thereof: ‘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: … (b) for doctors with basic training, specialised doctors, nurses responsible for general care, dental practitioners, specialised dental practitioners, veterinary surgeons, midwives, pharmacists and architects, when the migrant does not meet the requirements of effective and lawful professional practice referred to in Articles 23, 27, 33, 37, 39, 43 and 49’.
6 Article 13 of Directive 2005/36, entitled ‘Conditions for recognition’, provides, in the first subparagraph of paragraph 1 thereof: ‘If access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State shall permit applicants to access and pursue that profession, under the same conditions as apply to its nationals, if they possess an attestation of competence or evidence of formal qualifications referred to in Article 11, required by another Member State in order to gain access to and pursue that profession on its territory.’
7 Included in Chapter III of Title III of Directive 2005/36, which relates to ‘recognition on the basis of coordination of minimum training conditions’, Article 21 of that directive, entitled ‘Principle of automatic recognition’, provides, in paragraph 1 thereof: ‘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, as nurse responsible for general care, as dental practitioner, as specialised dental practitioner, as veterinary surgeon, as pharmacist and as architect, listed in Annex V, points 5.1.1, 5.1.2, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.6.2 and 5.7.1 respectively, which satisfy the minimum training conditions referred to in Articles 24, 25, 31, 34, 35, 38, 44 and 46 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, 5.1.2, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.6.2 and 5.7.1 respectively. …’
8 Point 5.1.1 of Annex V to Directive 2005/36, concerning evidence of formal qualifications in basic medical training in the United Kingdom, is worded as follows: ‘Country Evidence of formal qualifications Body awarding the qualifications Certificate accompanying the qualifications Reference date United Kingdom Primary qualification Competent examining body Certificate of experience 20 December 1976’
9 Under Article 55a of that directive, entitled ‘Recognition of professional traineeship’: ‘1. If access to a regulated profession in the home Member State is contingent upon completion of a professional traineeship, the competent authority of the home Member State shall, when considering a request for authorisation to exercise the regulated profession, recognise professional traineeships carried out in another Member State provided the traineeship is in accordance with the published guidelines referred to in paragraph 2, and shall take into account professional traineeships carried out in a third country. However, Member States may, in national legislation, set a reasonable limit on the duration of the part of the professional traineeship which can be carried out abroad. 2. Recognition of the professional traineeship shall not replace any requirements in place to pass an examination in order to gain access to the profession in question. The competent authorities shall publish guidelines on the organisation and recognition of professional traineeships carried out in another Member State or in a third country, in particular on the role of the supervisor of the professional traineeship.’
10 Pursuant the first subparagraph of Paragraph 6a of the Laki terveydenhuollon ammattihenkilöistä (559/1994, ammattihenkilölaki) (Law on healthcare professionals (559/1994)), as in force at the relevant time in the main proceedings, Valvira is to grant, upon application and subject to the conditions determined by it, authorisation to pursue the profession of doctor in Finland as a licensed professional, under the direction and supervision of a licensed professional entitled to pursue that profession independently, in a healthcare institution, to a person who commenced medical studies before 1 January 2012 in a State of the European Union or of the European Economic Area (EEA) in which the right to pursue the profession of doctor is contingent upon completion of a postgraduate professional traineeship and who has obtained an undergraduate degree in medicine in that State. Authorisation to pursue that profession is granted for a period of three years.
11 According to the second subparagraph of Paragraph 6a of the Law on healthcare professionals (559/1994), if the applicant has worked as a doctor for the period provided for in the first subparagraph of Paragraph 6a of that law in accordance with the conditions specified by Valvira, Valvira is to grant to the applicant, upon application, authorisation to pursue the profession of doctor independently in Finland. Valvira may extend the three-year period provided for in subparagraph 1 of Paragraph 6a, where there are just grounds for doing so.
12 A started studying medicine at the University of Edinburgh (United Kingdom) in 2008. On 6 July 2013, she obtained a Bachelor of Medicine and Bachelor of Surgery, an undergraduate degree in medicine.
13 The degree obtained by A corresponds to the evidence of formal qualifications referred to, with regard to the United Kingdom of Great Britain and Northern Ireland, in point 5.1.1 of Annex V to Directive 2005/36.
14 By virtue of the undergraduate degree in medicine that she had obtained, A had a restricted right to pursue the profession of doctor in the United Kingdom. She was entered as a ‘provisionally registered doctor with a licence to practise’ in the register of the competent authority of the United Kingdom, the General Medical Council. She was eligible to work in a postgraduate programme.
15 After completing her undergraduate degree in medicine, A returned to Finland. She then applied to Valvira for authorisation to pursue the profession of doctor in Finland as a licensed professional on the basis of the degree that she had obtained in the United Kingdom. However, A was unable to provide the certificate (Certificate of experience) accompanying the evidence of qualifications referred to with regard to the United Kingdom in point 5.1.1 of Annex V to Directive 2005/36, which is a prerequisite in the United Kingdom for the right to full registration with a licence to practise.
16 Since A did not hold that certificate, Valvira suggested that she convert the application for a licence to practise as a doctor into an application for a temporary licence. A agreed to this. According to Valvira, in order to obtain authorisation to pursue the profession of doctor independently in Finland, A had two options. First, she could complete a three-year professional traineeship in Finland in accordance with the United Kingdom guidelines and apply to the competent authority in the United Kingdom for recognition of that traineeship, in accordance with Article 55a of Directive 2005/36, in order subsequently to be able to apply in Finland for the right to pursue the profession of doctor on the basis of the system of automatic recognition provided for in that directive. Second, she could complete special training in general medical practice in Finland within a period of three years. A chose the second option, which does not lead, in other EU or EEA States, to the automatic recognition of professional qualifications as doctor, within the meaning of Directive 2005/36.
17 By decision of 3 November 2016, Valvira granted A, for a period of three years from 2 November 2016 to 2 November 2019, authorisation to pursue the profession of doctor in Finland as a licensed professional under the direction and supervision of a licensed doctor entitled to pursue that profession independently. A was authorised to pursue the profession of doctor during that period only on condition that she complete three years of special training in general medical practice in Finland.
18 By decision of 4 May 2017, Valvira rejected the complaint lodged by A. According to the grounds for that decision, A was granted authorisation to pursue the profession of doctor under Paragraph 6a of the Law on healthcare professionals (559/1994) in a situation in which she did not hold the certificate referred to in point 5.1.1 of Annex V to Directive 2005/36.
19 Hearing an action for annulment of that decision, the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland), by decision of 5 December 2017, dismissed that action on the grounds that, first, automatic recognition under Directive 2005/36 was not possible because A had not provided the certificate referred to, with regard to the United Kingdom, in point 5.1.1 of Annex V to that directive, second, the general system for the recognition of evidence of training was not applicable either, since A had not obtained the undergraduate degree in medicine before the reference date defined in point 5.1.1 of that directive, namely 20 December 1976, and, third, A could not benefit from a right in another EU Member State that was more advantageous than that granted in the Member State of origin. Therefore, Valvira was entitled to grant A a restricted right to pursue the profession of doctor under the direction and supervision of another licensed doctor who was entitled to pursue that profession independently.
20 Before the Korkein hallinto-oikeus (Supreme Administrative Court, Finland), A submits that her application for recognition of the undergraduate degree in medicine obtained in another Member State must be examined in accordance with the provisions of the general system of recognition laid down by Directive 2005/36, if the conditions for automatic recognition are not met. In that regard, she claims that Valvira should have made an individual comparison between the undergraduate degree in medicine which she obtained in the United Kingdom with the Finnish licentiate degree in medicine. According to A, it is contrary to EU law to impose a three-year period of supervision as a condition for the grant of the right to pursue the profession independently without evidence of substantial, uncompensated differences compared to the national standard.
21 On 1 November 2019, Valvira granted A authorisation to pursue the profession of doctor in Finland independently as a licensed professional. A has not however withdrawn her appeal before the Korkein hallinto-oikeus (Supreme Administrative Court).
22 That court considers that Valvira was not under an obligation, under Directive 2005/36, to compare the undergraduate degrees in medicine as awarded in Finland and the United Kingdom, since A did not fulfil the conditions laid down by the system of automatic recognition applicable to the profession of doctor or those laid down by the general system for the recognition of professional qualifications. The Korkein hallinto-oikeus (Supreme Administrative Court) is uncertain, however, whether such an obligation may arise under Articles 45 and 49 TFEU.
23 In those circumstances, the Korkein hallinto-oikeus (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Having regard to the principle of proportionality, is Article 45 or 49 TFEU to be interpreted as precluding the competent authority of a host Member State from granting, on the basis of the national legislation, a person the right to pursue the profession of doctor for a limited period of three years and subject to the restriction that that person may practise only under the direction and supervision of a licensed doctor and must complete three years of special training in general medical practice during that same period in order to obtain authorisation to pursue the profession of doctor independently in the host Member State, taking account of the fact that: (a) the person has obtained an undergraduate degree in medicine in the home Member State but, when applying for recognition of that professional qualification in the host Member State, he or she was unable to provide a certificate attesting to the completion of a professional traineeship of one year’s duration, which is required as a further condition for obtaining the professional qualification in the home Member State; (b) for the purposes of Article 55a of [Directive 2005/36,] in the host Member State, the person has been offered, as a preferential alternative, which was declined by him or her, the possibility of carrying out in the host Member State, for a period of three years, a professional traineeship that is in accordance with the guidelines of the home Member State and applying to the competent authority of the home Member State for recognition of that traineeship in order subsequently to be able to reapply in the host Member State for the right to pursue the profession of doctor through the system of automatic recognition referred to in the directive; (c) the purpose of the national legislation of the host Member State is to promote patient safety and the quality of healthcare services by ensuring that healthcare professionals have the training required for their professional activity, other sufficient professional qualifications and other skills required for the professional activity?’
24 As stated in paragraph 21 of the present judgment, although A has been authorised in the meantime to pursue the profession of doctor independently in Finland, she has not withdrawn her appeal before the Korkein hallinto-oikeus (Supreme Administrative Court), which considers that the resolution of the dispute requires an answer to be given to a question concerning the interpretation of EU law.
25 Having received a request for clarification in that regard, the referring court stated that, according to settled national case-law, an appeal is not to be dismissed as inadmissible on the ground that, in a case, it is no longer possible, on account of the passing of time or another reason, to annul a decision taken by an authority after that decision has been found to be unlawful. The referring court stated, by way of example, that if, in a case, the authorisation sought has been obtained, the Korkein hallinto-oikeus (Supreme Administrative Court) will rule on the grounds of appeal and thus rule on whether the initial decision and the decision of the hallinto-oikeus (Administrative Court) are lawful. The referring court also stated that, under the national legislation on compensation for damage, an award of damages due to the unlawful decision of an authority requires that that unlawfulness is first established separately by a final judgment.
26 It should be borne in mind in that regard that it has consistently been held that the procedure provided for in Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of European Union law which they need in order to decide the disputes before them (see judgment of 6 June 2013, MA and Others, C‑648/11, EU:C:2013:367, paragraph 36, and order of 1 September 2021, OKR (Reference for a preliminary ruling from a notary acting as a deputy for another notary), C‑387/20, EU:C:2021:751, paragraph 20 and the case-law cited).
27 Questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 6 June 2013, MA and Others, C‑648/11, EU:C:2013:367, paragraph 37 and the case-law cited).
28 In the present case, it should be noted that the referring court has stated, inter alia, that, under the national legislation on compensation for damage, an award of damages due to the unlawful decision of an authority requires that that unlawfulness is first established separately by a final judgment.
29 In so far as an action for damages brought by A could succeed only on condition that the unlawfulness of the administrative decision on which such an action is based has first been established separately by a final judicial decision, the content of which will depend on the answer to the question referred for a preliminary ruling, that question remains, in any event, relevant for the purpose of safeguarding, where appropriate, A’s rights vis-à-vis the national authority which adopted that administrative decision.
30 Accordingly, the request for a preliminary ruling is admissible.
31 It should be noted that the relevant facts in the present case occurred when EU law continued to apply in the United Kingdom. Accordingly, Articles 45 and 49 TFEU and Directive 2005/36 may be applicable in the present case.
32 By its question, the referring court asks, in essence, whether Articles 45 and 49 TFEU must be interpreted as precluding the competent authority of the host Member State from granting, on the basis of national legislation, a person a right to pursue the profession of doctor which is limited to a period of three years and subject to the twofold condition, first, that the person concerned may practise only under the direction and supervision of a licensed doctor and, second, that he or she must successfully complete three years of special training in general medical practice during the same period in order to obtain authorisation to pursue the profession of doctor independently in the host Member State, taking account of the fact that the person concerned, who has obtained an undergraduate degree in medicine in the home Member State, holds the evidence of formal qualifications, with regard to the United Kingdom, referred to in point 5.1.1 of Annex V to Directive 2005/36, but not the certificate referred to therein attesting to the completion of a professional traineeship of one year’s duration, which is required as a further condition for obtaining the professional qualification in the home Member State.
33 In that regard, it should be borne in mind that, under Article 21(1) of Directive 2005/36, each Member State is to recognise evidence of formal qualifications as doctor giving access to the professional activities of doctor with basic training, listed in point 5.1.1 of Annex V to that directive, and, for the purposes of access to and pursuit of the professional activities, is to give such evidence the same effect on its territory as the evidence of formal qualifications which it itself issues.
34 Furthermore, the Court has already stated that, as regards the purpose of Directive 2005/36, it is clear from Articles 1 and 4 thereof that the fundamental purpose of mutual recognition is to allow the holder of a professional qualification giving access to a regulated profession in the holder’s home Member State to gain access, in the host Member State, to the same profession as that for which he or she is qualified in the home Member State and to pursue that profession in the host Member State under the same conditions as its own nationals (judgment of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija, C‑166/20, EU:C:2021:554, paragraph 25).
35 It is common ground that, since the applicant in the main proceedings does not hold the Certificate of Experience referred to in point 5.1.1 of Annex V to Directive 2005/36, she is not entitled to practise fully, in the United Kingdom, the regulated profession of doctor with basic training and cannot, therefore, benefit from the system of automatic recognition provided for in Article 21 of that directive. The application of that system presupposes that the applicant has training which qualifies him or her in the home Member State to pursue such a profession there (see, to that effect, judgment of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija, C‑166/20, EU:C:2021:554, paragraphs 26 and 27).
36 As regards Article 10 of Directive 2005/36, which defines the scope of the general system for the recognition of evidence of training laid down in Chapter I of Title III of that directive, it cannot, by virtue of point (b) thereof, require the host Member State, without contravening the purpose of that directive, as set out in paragraph 34 of the present judgment, to examine the evidence of formal qualifications held by an applicant who does not have the qualifications necessary to pursue the profession of doctor with basic training in his or her home Member State (see, by analogy, judgment of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija, C‑166/20, EU:C:2021:554, paragraph 28 and the case-law cited).
37 It follows, however, from the Court’s case-law that it is not the purpose of the directives on mutual recognition of diplomas, inter alia Directive 2005/36, to make recognition of diplomas, certificates and other evidence of formal qualifications more difficult in situations falling outside their scope, nor may they have such an effect (see, to that effect, judgment of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija, C‑166/20, EU:C:2021:554, paragraphs 36 and 37).
38 Thus, in a situation which does not fall within the scope of Directive 2005/36 but which falls within the scope of Article 45 TFEU or Article 49 TFEU, the authorities of a Member State to which an application has been made by an EU national for authorisation to pursue a profession, access to which depends, under national legislation, on the possession of a diploma or professional qualification or on periods of practical experience, are required to take into consideration all the diplomas, certificates and other evidence of formal qualifications of the person concerned and his or her relevant experience, by comparing the specialised knowledge and abilities so certified, and that experience, with the knowledge and qualifications required by the national legislation (see, to that effect, judgment of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija, C‑166/20, EU:C:2021:554, paragraphs 34 and 38).
39 In the present case, it should be noted that A, who, as is apparent from the national case file, is a Finnish national, relies in Finland on a university degree which she obtained in another Member State.
40 In that regard, the Court has held that the free movement of persons would not be fully realised if the Member States were able to refuse to grant the benefit of Articles 45 and 49 TFEU to those of their nationals who had taken advantage of the provisions of EU law to acquire professional qualifications in a Member State other than that of which they are nationals. The same consideration applies where a national of a Member State has resided and obtained in another Member State a university qualification of which he or she intends to make use in the Member State of which he or she is a national (see, to that effect, judgment of 6 October 2015, Brouillard, C‑298/14, EU:C:2015:652, paragraphs 27 to 29).
41 It follows that, in a situation such as that in the main proceedings, which does not fall within the scope of Directive 2005/36, but which falls within the scope of Article 45 TFEU or Article 49 TFEU, the host Member State concerned must comply with its obligations with regard to the recognition of professional qualifications, as set out in paragraph 38 above.
42 That comparative examination procedure must enable the authorities of the host Member State to verify, on an objective basis, whether the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those attested by the national diploma. That assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed, by virtue of that diploma, to possess, having regard to the nature and duration of the studies and practical training to which the diploma relates (see, to that effect, judgment of 6 October 2015, Brouillard, C‑298/14, EU:C:2015:652, paragraphs 55 and the case-law cited).
43 If that comparative examination of diplomas results in the finding that the knowledge and qualifications attested by the foreign diploma correspond to those required by the national provisions, the Member State must recognise that diploma as fulfilling the requirements laid down by its national provisions (judgment of 6 October 2015, Brouillard, C‑298/14, EU:C:2015:652, paragraph 57 and the case-law cited).
44 By contrast, if that comparative examination reveals substantial differences between the training undertaken by the applicant and the training required in the host Member State, the competent authorities may set compensatory measures to remedy those differences (judgment of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija, C‑166/20, EU:C:2021:554, paragraph 41 and the case-law cited).
45 Nevertheless, measures adopted within the scope of EU law must comply with the general principles of EU law, in particular the principle of proportionality. Thus, compensatory measures must be restricted to those cases where they are proportionate to the objective pursued (see, to that effect, judgment of 2 December 2010, Vandorou and Others, C‑422/09, C‑425/09 and C‑426/09, EU:C:2010:732, paragraph 65).
46 Before imposing supplementary requirements to cover differences between the education and training provided in the home Member State and that provided in an applicant’s host Member State, the competent national authorities must assess whether the knowledge acquired by an applicant can be taken into account for the purpose of proving possession of the knowledge required by the latter State (see, to that effect, judgment of 2 December 2010, Vandorou and Others, C‑422/09, C‑425/09 and C‑426/09, EU:C:2010:732, paragraph 67).
47 National legislation which imposes, generally and without distinction, the same compensatory measures on all holders of an undergraduate degree in medicine obtained, in particular, in an EU Member State in which authorisation to pursue the profession of doctor is contingent upon completion of a postgraduate professional traineeship, does not appear to be consistent with the requirement of an effective comparison between, on the one hand, the specialised knowledge and abilities attested by the evidence of formal qualifications of the person concerned and, on the other, the knowledge and qualifications required by the legislation of the host Member State, or with the principle of proportionality.
48 In the light of all the foregoing considerations, the answer to the question referred is that Articles 45 and 49 TFEU must be interpreted as precluding the competent authority of the host Member State from granting, on the basis of national legislation, a person a right to pursue the profession of doctor which is limited to a period of three years and subject to the twofold condition, first, that the person concerned may practise only under the direction and supervision of a licensed doctor and, second, that he or she must successfully complete three years of special training in general medical practice during the same period in order to obtain authorisation to pursue the profession of doctor independently in the host Member State, taking account of the fact that the person concerned, who has obtained an undergraduate degree in medicine in the home Member State, holds the evidence of formal qualifications, with regard to the United Kingdom, referred to in point 5.1.1 of Annex V to Directive 2005/36, but not the certificate referred to therein attesting to the completion of a professional traineeship of one year’s duration, which is required as a further condition for obtaining the professional qualification in the home Member State.
49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.