1 This request for a preliminary ruling concerns the interpretation of Article 3(3), Article 21(1) and point 5.1.1 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 (OJ 2005 L 255, p. 22).
2 The request has been made in proceedings between B and the Niedersächsischer Zweckverband zur Approbationserteilung (NiZzA) (Lower Saxony Association for the grant of licences to practise) concerning NiZzA’s refusal to grant B a licence to practice medicine in Germany or, in the alternative, to admit her to an aptitude test.
3 Article 2 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), headed ‘Definitions’, provides: ‘For the purposes of this Directive: … 2. “family member” means: (a) the spouse; …’
4 Article 3 of that directive, entitled ‘Beneficiaries’, provides, in paragraph 1: ‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’
5 Article 24 of that directive, entitled ‘Equal treatment’, provides, in paragraph 1: ‘Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.’
6 Article 2 of Directive 2005/36, entitled ‘Scope’, provides, in paragraphs 1 and 2: ‘1. This Directive shall apply to all nationals of a Member State wishing to pursue a regulated profession in a Member State, including those belonging to the liberal professions, other than that in which they obtained their professional qualifications, on either a self-employed or employed basis. 2. 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 Article 3 of the directive, entitled ‘Definitions’, provides: ‘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 Community. 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 Article 21 of that directive, entitled ‘Principle of automatic recognition’, provides, in paragraph 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, 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. …’
9 Point 5.1.1 of Annex V to Directive 2005/36, entitled ‘Evidence of formal qualifications in basic medical training’, lists, for each Member State, evidence of formal qualifications enabling access to the profession of doctor, the bodies awarding such qualifications and, where appropriate, the certificates accompanying such evidence of formal qualifications.
10 Paragraph 3(1) to (3) of the Bundesärzteordnung (Federal Regulation on the practice of medicine), in the version applicable to the dispute in the main proceedings (‘the BÄO’), is worded as follows: ‘(1) A licence to practise medicine shall be granted, on application, if the applicant … 4. after following medical studies … has passed the State Medical Examination, within the scope of this Law, … Completed medical training in one of the other Member States of the European Union … shall be regarded as training within the meaning of point 4 … … A licence to practise medicine shall not be granted if the State Medical Examination or a section thereof under the order adopted under Paragraph 4(1) has been definitively failed. The seventh sentence shall not apply if the applicant has evidence of formal qualifications to be recognised under [Directive 2005/36]. (2) If the condition laid down in the point 4 of the first sentence of subparagraph 1 is not satisfied, applicants who have completed their medical training in another Member State of the European Union … shall be granted a licence … where there is an equivalent level of training. … Where there are significant differences … applicants shall provide evidence that they have the knowledge and skills required to pursue the profession of doctor. That evidence shall be provided by means of an aptitude test relating to the significant differences identified. … The second to ninth sentences shall also apply to applicants who have evidence of formal qualifications as a doctor issued by a country other than those referred to in the first sentence (third country) and which has been recognised by another of the countries referred to in the first sentence. (3) If the condition laid down in point 4 of the first sentence of subparagraph 1 is not satisfied, applicants who have evidence of formal qualifications as a doctor issued by a country other than those referred to in first sentence of subparagraph 2 (third country) shall be granted a licence to practise where there is an equivalent level of training. The second to sixth sentences and the eighth and ninth sentences of subparagraph 2 shall apply mutatis mutandis to the assessment of equivalence. Evidence of the required knowledge and skills shall be provided by passing an examination relating to the content of the final state examination. …’
11 Paragraph 36(1) of the Approbationsordnung für Ärzte (Regulation on the licence to practise medicine), in the version applicable to the dispute in the main proceedings, provides: ‘The aptitude test under the seventh sentence of Paragraph 3(2) of the [BÄO] shall relate to the subjects in which the competent authority has identified significant differences under the eighth sentence of Paragraph 3(2) of the [BÄO]. …’
12 Paragraph 37(1) and (7) of that regulation provides: ‘(1) The test shall relate to the subjects of internal medicine and surgery. … … (7) The knowledge test must be offered at least twice a year. It may be retaken twice. …’
13 B is a Serbian national married to a German national. She completed nine years’ medical studies in Serbia and obtained a State qualification in medicine in 2008 and a doctorate in medicine in 2010, awarded by Serbian universities. In 2011 and 2012, she worked as an assistant doctor in a hospital in Serbia.
14 On 11 April 2013, B applied to the Bezirksregierung Düsseldorf (Regional Authority, Düsseldorf, Germany) for a licence to practise medicine in Germany.
15 By decision of 6 December 2013, that authority found that the level of medical training acquired by B in Serbia was not equivalent to that required under German law for that licence to be granted. Consequently, it decided that B had to pass a knowledge test in order to be able to obtain that licence.
16 The applicant failed that knowledge test three times. Consequently, by decision of 11 November 2016, the Landesverwaltungsamt Sachsen-Anhalt (Administrative Office for the Land of Sachsen-Anhalt, Germany) rejected B’s application for a licence, on the ground that her failure to pass that test had to be regarded as final, in accordance with German law.
17 In June 2017, B initiated a procedure in Austria for recognition of the level of medical training that she had completed in Serbia.
18 By decision of 22 October 2018, the Universität Wien (University of Vienna, Austria) found that the formal qualification as a doctor which B had obtained in Serbia was equivalent to the Austrian diploma in medicine. Consequently, it decided that B was entitled to use the formal qualification of medical doctor.
19 By letters of 5 and 10 December 2018, B applied to NiZzA for a licence to practise medicine and, in the alternative, for admission to an aptitude test.
20 By decision of 12 July 2019, NiZzA rejected that application on the ground that B’s application for a licence to practise medicine had been definitively rejected, on 11 November 2016, by the Administrative Office for the Land of Sachsen-Anhalt.
21 On 24 July 2019, B brought an action against that decision before the Verwaltungsgericht Oldenburg (Administrative Court, Oldenburg, Germany), the referring court.
22 On 1 December 2019, B began working in a hospital in Austria as an assistant doctor undergoing specialist training. She was employed by that hospital for more than three years.
23 In the proceedings before the referring court, B submits that she possesses evidence of formal qualifications within the meaning of Directive 2005/36, on the ground, inter alia, that she has acquired three years’ professional experience in Austria, in accordance with Article 3(3) of that directive.
24 The referring court observes that, under German law, persons holding evidence of formal qualifications in medicine issued by a third country may obtain a licence to practise medicine in Germany only if the level of training acquired in that third country is regarded as equivalent to that required by German law for that licence to be granted or, where there is no equivalence, if he or she passes a knowledge test.
25 However, where evidence of formal qualifications in medicine issued by a third country has been recognised by a Member State other than the Federal Republic of Germany and in the absence of equivalence established by the competent German authority, the holder of that evidence of formal qualifications may obtain a licence to practise medicine in Germany by passing an aptitude test.
26 The referring court also states that, under German law, both the knowledge test and the aptitude test may be attempted only three times at most. Furthermore, in accordance with that right, a licence to practise medicine is not to be issued in the event of a definitive failure of a State medical examination or one of the intermediate levels of that examination, which is the case here.
27 Such a ground for refusal is not, however, applicable under German law where the applicant possesses evidence of formal qualifications which must be recognised in accordance with Directive 2005/36.
28 The referring court considers that B falls within the scope ratione personae of that directive, despite the limitation of that scope to nationals of the Member States, provided for in Article 2(1) of that directive. According to that court, as the spouse of a German national, B may rely on that directive on the basis of the equal treatment provided for by Directive 2004/38.
29 In addition, that court takes the view that B satisfies the conditions laid down in Article 3(3) of Directive 2005/36, since she has obtained recognition, by a Member State other than the Federal Republic of Germany, namely by the Republic of Austria, of her evidence of formal qualifications issued by a third country and has acquired three years’ professional experience in that other Member State.
30 In that context, the referring court asks whether B should be granted a licence to practise medicine in Germany on the basis of Article 21 of that directive.
31 In those circumstances, the Verwaltungsgericht Oldenburg (Administrative Court, Oldenburg) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is Article 3(3) of Directive [2005/36] to be interpreted as meaning that the recognition, by a Member State, of the evidence of formal medical qualifications issued by a third country, and certification, by that Member State, of attesting at least three years’ professional experience in the territory of the Member State must be recognised by another Member State as equivalent to the evidence of formal qualifications referred to in Annex V, point 5.1.1. of [that directive], and that the other Member State must therefore, by virtue of the principle of automatic recognition set out in Article 21(1) of Directive [2005/36], for the purposes of access to and pursuit of the professional activities, give evidence, within the meaning of Article 3(3) of [that directive], the same effect in its territory as the evidence of formal qualifications which it itself issues?’
32 In accordance with settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (see judgments of 8 November 1990, Gmurzynska-Bscher, C‑231/89, EU:C:1990:386, paragraphs 19 and 20, and of 22 October 2024, Kolin Inșaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 36).
33 Nevertheless, the Court must examine the circumstances in which cases are referred to it by the national court, in order to assess whether it has jurisdiction or whether the request submitted to it is admissible (judgment of 22 October 2024, Kolin Inșaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 37 and the case-law cited).
34 The Court may, in particular, find it necessary to examine whether the provisions of EU law to which the questions referred relate are applicable to the dispute in the main proceedings. If that is not the case, those provisions are irrelevant in resolving that dispute and the questions referred for a preliminary ruling are not necessary to enable the referring court to give judgment, with the result that those questions must be held to be inadmissible (see, to that effect, judgments of 22 October 2024, Kolin Inșaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 38, and of 3 April 2025, Swiftair, C‑701/23, EU:C:2025:237, paragraph 28).
35 In the present case, the referring court seeks the Court’s guidance as to the interpretation of Article 3(3) of Directive 2005/36, in the context of a dispute between a third-country national and the authorities of a Member State, on account of the refusal of those authorities to grant her a licence to practise medicine in that Member State.
36 Article 2(1) of the directive provides that it applies to all nationals of a Member State wishing to pursue a regulated profession in a Member State, including those belonging to the liberal professions, other than that in which they obtained their professional qualifications, on either a self-employed or employed basis.
37 Since that provision limits expressly the scope ratione personae of that directive to nationals of the Member States, third-country nationals do not fall within the scope of that directive.
38 That said, the referring court envisages the possibility, for a third-country national, to rely on the rules relating to the recognition of professional qualifications laid down in Directive 2005/36 on the basis of the equal treatment provided for in Article 24(1) of Directive 2004/38.
39 In that regard, it cannot be held that the mere fact that a third-country national is a family member of a Union citizen means that he or she may rely on the rights conferred by Directive 2004/38, including that provided for in Article 24(1) of that directive.
40 In accordance with Article 3(1) of Directive 2004/38, Union citizens who move to or reside in a Member State other than that of which they are a national, and their family members, as defined in Article 2(2) of that directive, who accompany or join them, fall within the scope of the directive and are beneficiaries of the rights conferred by it (judgment of 10 September 2019, Chenchooliah, C‑94/18, EU:C:2019:693, paragraph 54 and the case-law cited).
41 In that connection, the Court has previously held that it follows from a literal, contextual and teleological interpretation of Directive 2004/38 that the directive governs only the conditions determining whether a Union citizen can enter and reside in Member States other than that of which he is a national and does not confer a derived right of residence on third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a national (see, to that effect, judgments of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 33, and of 5 June 2018, Coman and Others, C‑673/16, EU:C:2018:385, paragraph 20).
42 The Court has also clarified that that directive does not apply where the Union citizen concerned has never exercised his or her right of free movement and has always resided in the Member State of which he or she is a national. In so far as a Union citizen is not covered by the concept of ‘beneficiary’ for the purposes of Article 3(1) of that directive, a member of his or her family is not covered by that concept either, given that the rights conferred by the directive on the family members of a beneficiary of the directive are not autonomous rights of those family members, but derived rights, acquired through their status as members of the beneficiary’s family (see, to that effect, judgment of 13 September 2016, CS, C‑304/14, EU:C:2016:674, paragraph 22 and the case-law cited).
43 It follows that a third-country national cannot rely on his or her status as a family member of a Union citizen in order to claim, in the Member State of which that Union citizen is a national, the benefit of equal treatment with the nationals of that Member State, provided for by Article 24(1) of that directive.
44 In the present case, first of all, it is apparent from the order for reference that the dispute in the main proceedings concerns an application by a third-country national for a licence to practise medicine in the Member State of which the Union citizen to whom she is married is a national.
45 It must therefore be held that such a third-country national cannot validly rely on Article 24(1) of Directive 2004/38, with the result that that directive cannot be invoked in order to justify the application of Directive 2005/36 to the dispute.
46 Next, the referring court does not rely on any other provision of EU law or any international factor capable of justifying the application of Directive 2005/36, the interpretation of which it seeks, to the dispute.
47 Last, the request for a preliminary ruling makes no mention of any reference made by national law to the content of Directive 2005/36.
48 Such a reference is, in any event, liable to be taken into consideration by the Court for the purpose of establishing that it must deliver a preliminary ruling only where that reference is apparent from the order for reference (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 54).
49 In the light of all of the foregoing considerations, and in particular the fact that the third-country national in question in the main proceedings does not fall within the scope ratione personae of Directive 2005/36, the Court holds that the interpretation of Article 3(3), Article 21(1) and point 5.1.1 of Annex V to that directive is not necessary to enable the referring court to give judgment.
50 It follows that the request for a preliminary ruling is inadmissible.
51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.