Contents
Judgment of the Court (Fifth Chamber)19 June 2003noteIn Case C-110/01,REFERENCE to the Court under Article 234 EC by the Conseil d'État (France) for a preliminary ruling in the proceedings pending before it betweenMalika Tennah-DurezandConseil national de l'ordre des médecins,THE COURT (Fifth Chamber),composed of: C.W.A. Timmermans, President of the Fourth Chamber, acting as President of the Fifth Chamber, D.A.O. Edward (Rapporteur), P. Jann, S. von Bahr and A. Rosas, Judges,Advocate General: F.G. Jacobs,Registrar: M.-F. Contet, Principal Administrator,after considering the written observations submitted on behalf of:Mrs Tennah-Durez, by Y. Richard and S. Mandelkern, avocats,— the Conseil national de l'ordre des médecins, by C.-L. Vier and J. Barthélémy, avocats,— the French Government, by G. de Bergues and C. Bergeot-Nunes, acting as Agents,— the Belgian Government, by F. van De Craen, acting as Agent,— the Italian Government, by U. Leanza, acting as Agent, and G. Aiello, avvocato dello Stato,— the Austrian Government, by C. Pesendorfer, acting as Agent,— the Commission of the European Communities, by M. Patakia, acting as Agent,having regard to the Report for the Hearing,after hearing the oral observations of Mrs Tennah-Durez, represented by S. Mandelkern; of the Conseil national de l'ordre des médecins, represented by J. Barthélémy; of the French Government, represented by C. Bergeot-Nunes; of the Belgian Government, represented by A. Snoecx, acting as Agent; of the United Kingdom Government, represented by C. Lewis, Barrister; and of the Commission, represented by M. Patakia, at trie hearing on 5 March 2002,after hearing the Opinion of the Advocate General at the sitting on 6 June 2002,gives the following
Judgment
1By decision of 29 January 2001, received at the Court on 9 March 2001, the Conseil d'État (Council of State) referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 9(5) and Article 23(2) of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1).
2Those questions were raised in proceedings between Mrs Tennah-Durez and the Conseil national de l'ordre des médecins de France (National Council of the Medical Association (France)) concerning her application to be enrolled on the French register of medical practitioners.
Law
Community legislation
3In order to set up a system of mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, Directive 93/16 lays down the conditions with which medical training must comply in order for Member States to award a doctor's qualification eligible for mutual recognition in the Member States and lists those diplomas, certificates and other evidence of formal qualifications.
4Thus, Article 2 of Directive 93/16 provides:‘Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 23 and which are listed in Article 3, by giving such qualifications, as far as the right to take up and pursue the activities of a doctor is concerned, the same effect in its territory as those which the Member State itself awards.’
5Article 3 of Directive 93/16, which lists the medical qualifications (basic training) in respect of which mutual recognition applies, provides:‘The diplomas, certificates and other evidence of formal qualifications referred to in Article 2 are as follows:(a) in Belgium:“diplôme légal de docteur en médecine, chirurgie et accouchements/Wettelijk diploma van doctor in de genees-, heel- en verloskunde” (diploma of doctor of medicine, surgery and obstetrics required by law) awarded by the university faculties of medicine, the Central Examining Board or the State University Education Examining Board;...’
6Article 4 of Directive 93/16, which governs recognition of qualifications in specialised medicine, provides:‘Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications in specialised medicine awarded to nationals of Member States by the other Member States in accordance with Articles 24, 25, 26, and 29 and which are listed in Article 5, by giving such qualifications the same effect in its territory as those which the Member State itself awards.’
7Article 5 of Directive 93/16 provides:1. The diplomas, certificates and other evidence of formal qualifications referred to in Article 4 shall be those which, having been awarded by the competent authorities or bodies listed in paragraph 2 correspond, for the purpose of the specialised training concerned, to the qualifications recognised in the various Member States and listed in paragraph 3.2. The diplomas, certificates and other evidence of formal qualifications awarded by the competent authorities or bodies referred to in paragraph 1 are as follows:in Belgium:“titre d'agrégation en qualité de médecin spécialiste /erkenningstitel van geneersheer specialist” (formal evidence of having qualified as a medical specialist) issued by the Minister responsible for public health;...’
8Article 7 of Directive 93/16 sets out the list of diplomas, certificates and other evidence of formal qualifications in specialised medicine peculiar to two or more Member States.
9Article 9 of Directive 93/16, which governs the issue of certificates stating that national qualifications not included in the directive have been awarded following training in accordance with the directive, provides at paragraph (5):‘In the case of nationals of the Member States whose diplomas, certificates and other evidence of formal qualifications in medicine or in specialised medicine do not conform with the qualifications or designations set out in Article 3, 5 or 7, each Member State shall recognise as being sufficient proof the diplomas, certificates and other evidence of formal qualifications awarded by those Member States, accompanied by a certificate issued by the competent authorities or bodies. The certificate shall state that these diplomas, certificates and other evidence of formal qualifications in medicine or in specialised medicine were awarded following training in accordance with the provisions of Title III referred to, as appropriate, in Article 2, 4 or 6, and are treated by the Member State which awarded them as the qualifications or designations set out, as appropriate, in Article 3, 5 or 7.’
10Article 22 of Directive 93/16 provides:‘In the event of justified doubts, the host Member State may require of the competent authorities of another Member State confirmation of the authenticity of the diplomas, certificates and other evidence of formal qualifications issued in that other Member State and referred to in Chapters I to IV of Title II and also confirmation of the fact that the person concerned has fulfilled all the training requirements laid down in Title III.’
11Article 23, which forms part of Title III of Directive 93/16 and which sets out the conditions which basic medical training must fulfil, provides:1. The Member States shall require persons wishing to take up and pursue a medical profession to hold a diploma, certificate or other evidence of formal qualifications in medicine referred to in Article 3 which guarantees that during his complete training period the person concerned has acquired:(a) adequate knowledge of the sciences on which medicine is based and a good understanding of the scientific methods including the principles of measuring biological functions, the evaluation of scientifically established facts and the analysis of data;(b) sufficient understanding of the structure, functions and behaviour of healthy and sick persons, as well as relations between the state of health and physical and social surroundings of the human being;(c) adequate knowledge of clinical disciplines and practices, providing him with a coherent picture of mental and physical diseases, of medicine from the points of view of prophylaxis, diagnosis and therapy and of human reproduction;(d) suitable clinical experience in hospitals under appropriate supervision.2. A complete period of medical training of this kind shall comprise at least a six-year course or 5500 hours of theoretical and practical instruction given in a university or under the supervision of a university.3. In order to be accepted for this training, the candidate must have a diploma or a certificate which entitles him to be admitted to the universities of a Member State for the course of study concerned.....5. Nothing in this Directive shall prejudice any facility which may be granted in accordance with their own rules by Member States in respect of their own territory to authorise holders of diplomas, certificates or other evidence of formal qualifications which have not been obtained in a Member State to take up and pursue the activities of a doctor.’
12Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p. 16) and Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25) define, for their respective purposes, what is meant by ‘diploma’.
13Article 1(a) of Directive 89/48 includes a requirement in that regard that ‘the education and training attested by the diploma, certificate or other evidence of formal qualifications were received mainly in the Community, or [that] the holder thereof has three years' professional experience certified by the Member State which recognised a third-country diploma, certificate or other evidence of formal qualifications’.
14Article 1(a) of Directive 92/51 requires in that respect that ‘education and training attested by this evidence was received mainly in the Community, or outside the Community at teaching establishments which provide education and training in accordance with the laws, regulations or administrative provisions of a Member State, or that the holder thereof has three years' professional experience certified by the Member State which recognised third-country evidence of education and training’.
15Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (OJ 2001 L 206, p. 1) altered the system for mutual recognition for the purpose inter alia of simplifying the updating of the lists of qualifications eligible for automatic recognition.
French legislation
16Article L. 356 of the Code de la santé publique (Public Health Code), in force at the material time, provides:‘No one may exercise the profession of doctor... in France unless he is:1. the holder of a diploma, certificate or other evidence of formal qualifications referred to in Article L. 356-2...2. a French national or a national of one of the other Member States of the European Economic Community...’.
17Under Article L. 356-2 of the Code:‘The diplomas, certificates and other evidence of formal qualifications required under Article L. 356-1 are (1) in order to practise the profession of doctor: either the French State diploma of docteur en médecine (doctor of medicine)... or, where the person concerned is a national of a Member State of the European Economic Community,... a diploma, certificate or other evidence of formal qualifications in medicine awarded by one of those States and included in a list drawn up, in accordance with Community requirements or with those deriving from the Agreement on the European Economic Area, by a joint decree of the Minister of Health and the Minister responsible for universities...’.
18Article 2 of the Decree of 18 June 1981 (JORF of 28 June 1981, p. 5986), as amended, provides that the diploma which entitles Belgian nationals to practise the profession of doctor in France is the ‘diploma of doctor of medicine, surgery and obstetrics required by law... awarded by the university faculties of medicine, the Central Examining Board or the State University Education Examining Board after 20 May 1929’.
19Article 3-1 of the Decree of 18 June 1981, as amended, which incorporates Article 9(5) of Directive 93/16 into national law, provides:‘Where a doctor submits diplomas, certificates or other evidence of formal qualifications in medicine awarded by a Member State of the European Communities which do not conform with the qualifications or designations prescribed for that Member State in Article 2 or 3 of this decree, he must provide a certificate issued by the competent authorities stating that those diplomas, certificates or other evidence of formal qualifications in medicine were awarded following training in accordance with Community requirements and are treated by the Member State which awarded them as the qualifications or designations mentioned in Article 2 or 3 of this decree.’
The main proceedings and the questions referred for a preliminary ruling
20Mrs Tennah-Durez, who is of Algerian nationality, obtained a diploma of doctor in medicine from the Algiers faculty of medicine in 1989. Having acquired Belgian nationality, she resumed her medical studies at the University of Ghent in Belgium. The University of Ghent recognised her six years of training at the Algiers faculty of medicine and consequently authorised her to enrol for the seventh and final year of medicine, on completion of which she was awarded the basic medical qualification, the degree of ‘arts’ (‘the Belgian arts diploma’) on 28 September 1995.
21Mrs Tennah-Durez also enrolled for specific training as a general medical practitioner, namely an eighth and ninth year of medicine at Ghent University, on completion of which she was awarded the medical qualification known as the degree of ‘huisarts’ (‘the Belgian huisarts diploma’) on 29 September 1997. She was authorised to practise as a general medical practitioner by Belgian ministerial order of 10 February 1998.
22Since she wished to settle in France, Mrs Tennah-Durez applied to the Conseil départemental de l'ordre des médecins du Nord (Northern District Council of the Medical Association; ‘the Conseil départemental’) to be entered on the register of the Ordre des médecins in France and submitted her Belgian arts and huisarts diplomas. Taking the view that those qualifications did not correspond to those mentioned in Article 3, 5 or 7 of Directive 93/16, the Conseil national de l'ordre des médecins (National Council of the Medical Association; ‘the Conseil national’), when consulted by the Conseil départemental, made inquiries at the Belgian Ministry for Social Affairs, Public Health and the Environment (‘the Belgian Ministry’).
23The Belgian Ministry issued an initial certificate on 23 July 1998 stating that Mrs Tennah-Durez, ‘[who is] the holder of the Belgian diploma of doctor of medicine, surgery and obstetrics required by law issued on 28 September 1995 by the University of Ghent (UG) and [is] qualified to practise medicine in Belgium with effect from that date, has been recognised as an authorised general practitioner by Ministerial Order of 10 February 1998 following specific training in general medical practice of at least two years in accordance with Article 30 of Directive 93/16/EEC’.
24However, in a second letter dated 6 October 1998, the Belgian Ministry stated:‘Further to the certificate which you have already received... which is quite correct in confirming that [Dr Malika Tennah-Durez's] training in general medical practice meets the minimum training requirements laid down by Articles 31 and 32 of Directive 93/16/EEC, I must inform you that her medical training (basic training leading to the award of a doctor's diploma (arts) is not in accordance with the minimum training conditions referred to in Article 23 of that directive. The University of Ghent recognised the training which she had received abroad as representing 6 years of the total training which in Belgium takes 7 years. She has only had to repeat the seventh and final year of medical studies, which means that her medical training was not received mainly in Belgium or in another Member State of the European Union.’
25In a third letter, dated 14 October 1998, the Belgian Ministry confirmed that ‘the degree of “arts” (Doctor) awarded on 28/09/1995... is in fact the diploma currently awarded by Flemish universities in accordance with Article 3 of Directive 93/16/EEC’.
26Meanwhile, on the basis of the letter from the Belgian Ministry of 6 October 1998, the Conseil départemental removed Mrs Tennah-Durez from the register of the French Ordre des médecins. When she brought the matter before the Conseil régional de l'ordre des médecins du Nord-Pas-de-Calais (‘the Conseil régional’), the latter concluded that the Conseil départemental did not have jurisdiction to annul its own decision regarding registration. Furthermore, relying on a certificate from the Belgian Ministry of 26 October 1998 stating that Mrs Tennah-Durez had completed ‘at least 5600 hours (of theory and practice) of medical training, which exceeds the 5500 hours referred to in Article 23(2) of Directive 93/16’, the Conseil régional found that she was entitled to be entered on the register of the Ordre des médecins. It therefore revoked the Conseil départemental's decision and upheld her registration.
27The Conseil national appealed against the decision of the Conseil régional to the disciplinary section of the Conseil national, which again removed Mrs Tennah-Durez from the register of the Ordre des médecins. She then appealed to the Conseil d'État, alleging misuse of powers.
28Since it was in doubt as to the correct interpretation of the Community law applying in this area, the Conseil d'État decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:1. Are the provisions of Article 23(2) of Council Directive 93/16/EEC of 5 April 1993 relating to the period of medical training that a doctor who is a national of a Member State must have completed, comprising at least a six-year course or 5500 hours of theoretical and practical instruction given in a university or under the supervision of a university, to be understood as meaning training completed, in its entirety, only in a university of a Member State of the Community or under the supervision of such a university, or do they allow all or part of any training received in a third country to be taken into account?2. Are the national authorities bound by the certificate provided, pursuant to Article 9(5) of the directive, by the competent authorities of the Member State in which the diploma submitted by the person concerned was awarded, which states that the diploma is treated as one of the qualifications or designations set out in Article 3, 5 or 7 of the directive and was awarded following training in accordance with the provisions of Title III thereof, or may they make their own assessment of the said certificate in the light of, in particular, the minimum training requirements prescribed by the directive and required by national legislation in order, in some circumstances, to consider whether, despite the terms of the certificate so issued, the training received by the person concerned meets the requirements of the directive?’
Preliminary observations
29Article 2 of Directive 93/16 requires each Member State to recognise the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 23 and listed in Article 3 of the directive, by giving such qualifications, as far as the right to take up and pursue the activities of a doctor is concerned, the same effect in its territory as those which the Member State itself awards.
30Recognition is automatic and unconditional in that Member States are obliged to accept the equivalence of certain diplomas and cannot require the persons concerned to comply with requirements other than those laid down by the relevant directives (see Case C-238/98 Hocsman [2000] ECR I-6623, paragraph 33). It is underpinned by the Member States' mutual trust in the adequacy of the medical diplomas awarded by other Member States, such trust being based on a training system the standards of which were determined by mutual agreement.
31Hence, Community law makes the award of a doctor's diploma by Member States subject to certain specific requirements, in order that the diploma is capable of being recognised automatically and unconditionally in all the Member States. Those requirements entail a degree of harmonisation and coordination at Community level of both basic and specialist medical training (the harmonisation aspect) and of the rules for taking up and pursuing the activities of a doctor in the Member States (the coordination aspect).
32The system for recognition of medical diplomas, as set up by Directive 93/16, is thus a system of sectoral recognition applying to a profession in respect of which training has been harmonised at Community level.
33That system differs from the general system for the recognition of diplomas and professional qualifications set up inter alia by Directive 89/48, which was mentioned by several of those submitting observations. The arrangements put in place by that directive give effect to another method of mutual recognition of diplomas and professional qualifications designed, as stated in the third recital of the preamble to Directive 89/48, to make it easier for the citizens of the Union to pursue all those professional activities which, in a host Member State, are dependent on the completion of postsecondary education and training, provided they hold such qualifications preparing them for those activities awarded on completion of a course of studies lasting at least three years and issued in another Member State.
34That method does not lead to automatic and unconditional recognition of the diplomas and professional qualifications concerned. It is based on the idea that the conditions upon which the practice of the professions concerned is dependent are to be broadly equivalent and allows the Member States to require the person concerned, in certain circumstances, to comply with additional requirements, including completion of a period of adaptation.
35The questions referred for a preliminary ruling must be answered in the light of those observations.
The first question
36By its first question, the national court seeks to ascertain to what extent the medical training required by Article 23(2) of Directive 93/16 may consist of training completed in a third country.
Observations submitted to the Court
37Mrs Tennah-Durez submits that it should be possible for medical training covered by Directive 93/16 to include, wholly or in part, training received in a third country provided that the training is recognised by a diploma of a Member State.
38It is where a Member State has no power to scrutinise training acquired in a third country that recognition by a Member State of a diploma awarded by a third country cannot be effective in another Member State. However, in her case the Belgian authorities were in a position to review her training, since she successfully passed the seventh year examinations for the diploma of doctor of medicine, the purpose of which is to provide evidence of successful completion of training in accordance with the minimum requirements laid down by Article 23 of Directive 93/16.
39The Conseil national argues that Mrs Tennah-Durez's situation is the same as that examined in Hocsman and that, consequently, recognition of a Community diploma awarded following training received partly in a third country is no more governed by the principle of mutual recognition than is recognition of a non-Community diploma which is subsequently recognised by a Member State.
40Since Directive 93/16 does not govern recognition of a Community diploma awarded following training received partly in a third country, any assessment of whether that training complies with the requirements of the directive is binding only on the Member State which carried out the assessment and is just one of the factors to be taken into account by the other Member States under Article 43 EC. The Conseil national none the less acknowledges that under Article 43 EC it is only where a second Member State considers the level of training and experience acquired by the person concerned, both outside and in the Community, to be inadequate that it may, by reasoned decision, refuse that person authorisation to practise medicine in its territory.
41Although the governments which have submitted observations to the Court generally agree that the fact that part of the training has been received in a third country does not prevent Member States from awarding diplomas which are eligible for mutual recognition under Directive 93/16, some of them point out that the training must have been received mainly (that is, more than half of it) in the Community.
42The French and Austrian Governments observe that a condition of that kind was incorporated in Directive 89/48. Compliance with that condition ensures that the mutual recognition of medical diplomas is subject to necessary and appropriate safeguards.
43The Commission adds that the part of the training received mainly within the Community must include the end of the course, failing which automatic recognition is impossible.
44It does not consider it necessary to create a completely new type of diploma. It would be enough to mention on the diploma concerned that it has been awarded following training received mainly outside the Community and that therefore its holder cannot benefit from the system of automatic recognition established by Directive 93/16.
45The Commission also submits that diplomas awarded by a Member State which are awarded following training received mainly in a third country must be treated, for the purposes of implementing Directive 93/16, as diplomas obtained in a third country. In those circumstances, it would be logical to apply to such diplomas the reasoning employed in the judgment in Hocsman concerning diplomas awarded in a third country. In the case before the national court the other Member States would thus be required to compare the knowledge and abilities to which Mrs Tennah-Durez's diplomas, certificates and other evidence of qualifications attest, as well as her experience, with the knowledge and qualifications required by their national law.
46At the hearing, the Commission pointed out that together with the Member States' representatives on the Public Health Committee it had developed the condition concerning the major part of the training in response to parliamentary questions about various sectoral directives on the recognition of diplomas.
47The Belgian Government concurs in essence with the argument put forward by the Commission. At the hearing, it also stated that, where a Member State awards a diploma following training received mainly in a third country, there must be a presumption that the diploma is equivalent to the corresponding diploma awarded following training received mainly in that Member State. Since that is a presumption of equivalence and not automatic recognition, the presumption is capable of being rebutted in cases of doubt.
Reply of the Court
48Article 23(2) of Directive 93/16 provides that the medical training referred to in Article 23(1) must comprise at least a six-year course or 5500 hours of theoretical and practical instruction given in a university or under the supervision of a university.
49That provision, as worded, does not make it obligatory for the training to be given exclusively, or to a particular extent, in a university in a Member State or under the supervision of such a university.
50It is true that several of the other provisions of Directive 93/16 assume that there are factors connecting the person's situation to a Member State. Thus, Article 2 provides that only diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by one of the other Member States are eligible for automatic recognition under the directive, and Article 23(3) provides that in order to be accepted for training leading to such a diploma, certificate or other evidence of a medical qualification, the candidate must have a diploma or a certificate which entitles him to be admitted to the universities of a Member State for the course of study concerned. However, none of the provisions deals with the question of the extent to which the medical training required by Article 23(2) of Directive 93/16 must have been received in a university of a Member State or under the supervision of such a university.
51Nor does the general scheme of Directive 93/16 preclude medical training leading to a diploma, certificate or other evidence of a medical qualification eligible for automatic recognition which has been received partly outside the Community, for example, in the context of an exchange programme with a university in a third country. Moreover, the objective of promoting student exchanges requires that to be possible.
52Directive 93/16 thus does not specify either expressly or by implication the extent to which the medical training required by Article 23(2) may comprise training received in a third country.
53That is because for the purposes of the recognition of diplomas under Directive 93/16 the award of a doctor's diploma depends not on where the training has been provided but on whether it complies with the qualitative and quantitative training requirements laid down by Directive 93/16.
54In that regard it must be emphasised that the Community system for recognition of diplomas, certificates and other evidence of medical qualifications established by Directive 93/16 precludes Member States from awarding doctors' diplomas which do not comply with the requirements of Directive 93/16. It follows from the harmonisation brought about by the directive in the training of doctors that Member States are not in a position to create a category of doctor's qualification which does not correspond to any category provided for by Directive 93/16 and which therefore is not eligible for mutual recognition in the other Member States (see to that effect, in relation to dental diplomas, Case C-40/93 Commission v Italy [1995] ECR I-1319, paragraph 24).
55Contrary to what has been suggested in some of the observations submitted to the Court, in particular those of the Commission (see paragraph 44 above), a body in a Member State may not state on a diploma in medicine awarded by it that the diploma does not allow its holder to benefit from the system of automatic recognition established by Directive 93/16 on the ground that it is being awarded following medical training received principally outside the Community and that in the view of the awarding body the training therefore fails to comply with the requirements of Directive 93/16.
56In those circumstances, responsibility for ensuring that the training requirements, both qualitative and quantitative, laid down by Directive 93/16 are fully complied with falls wholly on the competent authority of the Member State awarding the diploma. In exercising its powers the authority must bear in mind that a doctor's diploma will enable its holder to move around and practise in all the Member States of the European Union as a result of its being recognised automatically and unconditionally.
57A diploma thus awarded amounts to a ‘doctor's passport’ enabling the holder to work as a doctor throughout the European Union, without the professional qualification attested to by the diploma being open to challenge in the host State except in specific circumstances laid down by Community law.
58It is true that the greater the proportion of the medical training received or supervised by an institution other than the institution awarding the doctor's diploma, the more difficult it is to ensure that the requirements as to medical training laid down by Directive 93/16 have been complied with. However, any practical difficulties in that respect are liable to arise not only in relation to training received outside the Community but also in relation to training received in a Member State other than the one in which the doctor's diploma is awarded or in an institution of the same Member State other than the institution awarding the diploma.
59Although Directive 93/16 provides for a degree of harmonisation as regards both the quality and quantity of medical training in all the institutions of the Member States providing such training, it does not seek such complete harmonisation that there would be no need to verify the training received in the event of transfer from one institution to another in the course of training.
60Consequently, provided that the competent authority in the Member State awarding the diploma is in a position to validate medical training received in a third country and to conclude on that basis that the training duly complies with the training requirements laid down by Directive 93/16, that training may be taken into account in deciding whether to award a doctor's diploma.
61That means that in principle there is no reason why the proportion of the medical training received in a third country should not represent (as it does in the case before the national court) as much as 85% of the total length of the requisite training provided that the condition mentioned in the preceding paragraph is met.
62Several governments and the Commission maintain, however, that mutual recognition under Directive 93/16 presupposes that the training has been received mainly in a university in a Member State or under the supervision of such a university.
63That argument cannot be accepted.
64Directive 93/16, which lays down detailed provisions for the system of mutual recognition which it sets up, contains no reference, even indirectly, to a condition of the kind alluded to in their observations as to where the training should mainly be received.
65Next, as regards the arguments based on the fact that Directives 89/48 and 92/51 contain such a condition, the rules governing the recognition of diplomas and professional qualifications laid down by those directives on the one hand, which concern the general system for the recognition of diplomas and professional qualifications, and by Directive 93/16 on the other are based on different principles, as explained in paragraphs 30 to 34 of this judgment. The fact that Directives 89/48 and 92/51 refer to such a condition is not sufficient for it to be transferred and applied by analogy to the recognition of doctors' diplomas, which is governed by a sectoral directive, Directive 93/16.
66Furthermore, although the condition as to where the training was mainly received applies in the context of Directives 89/48 and 92/51 for the purpose of establishing which diplomas fall within the scope of those directives, the latter do not preclude diplomas which do not meet that condition from being regarded as diplomas for the purposes of their application. In accordance with Article 1(a), ‘diploma’ for the purposes of Directive 89/48 includes a diploma awarded in a third country provided that its holder can show that he has three years' professional experience certified by the Member State which recognised the diploma. Directive 92/51 goes even further and, pursuant to Article 1(a), includes within the meaning of ‘diploma’ diplomas awarded following training received mainly outside the Community, provided that the training was received at a teaching establishment which provides education and training in accordance with the laws, regulations or administrative provisions of a Member State.
67Finally, in the context of a directive such as Directive 93/16, whose purpose is precisely to secure the automatic and unconditional recognition of diplomas, a requirement for training to have been received mainly within the Community would provide no legal certainty at all, since such a concept is open to several very different interpretations, as was clear, moreover, from the argument before the Court. Thus, whether the training was received mainly within the Community could be assessed solely by reference to the time spent in training in and outside the Community respectively. Another possibility is to consider the relative importance of the subjects taught within the Community and those taught outside it. It is also possible to impose a requirement that the periods of training completed in a Member State should include periods which are nearer to the end of the training. The fact that the interpretation of the concept of training received ‘mainly’ in the Community may vary depending on the approach taken by the competent authorities in the Member States underlines how important it is not to apply such a requirement by analogy for the purposes of Directive 93/16.
68The situation of the applicant in the main action can be distinguished from the situation referred to in Article 23(5) of Directive 93/16, which provides that the directive is not to prejudice any facility which may be granted by Member States in accordance with their own rules in respect of their own territory to recognise the equivalence of a diploma awarded in a third country.
69The diploma at issue in the main proceedings is in fact not a diploma awarded in a third country but a diploma awarded by a university in a Member State in accordance with its own rules. The fact that the diploma is of Community origin entitles the other Member States to conclude that the competent authority of the Member State which awarded it has complied with its obligations of verification under Directive 93/16, so that the mutual trust underlying the system of mutual recognition established by Directive 93/16 is not jeopardised.
70In the light of those considerations the answer to the first question must be that the medical training required by Article 23(2) of Directive 93/16 may comprise training received even mainly in a third country, provided that the competent authority of the Member State awarding the diploma is in a position to validate the training and to conclude on that basis that it duly serves to meet the requirements for the training of doctors laid down by the directive.
The second question
71By its second question, the national court seeks to ascertain to what extent the authorities of a host Member State are bound by a certificate, issued in accordance with Article 9(5) of Directive 93/16, which states that the diploma concerned is treated as one of the qualifications or designations set out in Article 3, 5 or 7 of the directive and was awarded following training in accordance with the provisions of Title III thereof.
Observations submitted to the Court
72Mrs Tennah-Durez submits that when the authorities of a Member State indicate in a certificate that training received in a third country is equivalent to that provided in their territory, the certificate is awarded following training in accordance with the requirements of Title III of Directive 93/16.
73The Italian Government argues that each of the Member States retains power to verify that the minimum training conditions laid down by Directive 93/16 have been properly complied with. However, in accordance with paragraph 21 of the judgment in Hocsman, a Member State seised of an application for authorisation to practise a regulated profession must compare the knowledge and abilities certified, including training received in a third country, with the knowledge and qualifications required by national law.
74The French Government and the Commission submit that the Belgian authorities did not issue a certificate of conformity as provided for in Article 9(5) of Directive 93/16. The Commission adds that if the authorities of a Member State issue such a certificate, the authorities of the other Member States are as a rule required to accept the statements in the certificate without further examination.
Reply of the Court
75Since the aim of the Community system for the recognition of diplomas, certificates and other evidence of medical qualifications, as described in paragraphs 30 to 34 of this judgment, is that qualifications should be given automatic and unconditional recognition, the system would be seriously jeopardised if it were open to Member States at their discretion to question the merits of a decision taken by the competent institution of another Member State to award the diploma.
76However, since there may be cases in which there is serious doubt as to the conformity of a doctor's diploma with the applicable Community rules or as to the authenticity of the diploma, Directive 93/16 gives the host Member State two ways of satisfying itself that the diploma submitted to it is eligible for automatic and unconditional recognition.
77First, if the diploma does not conform with the designations listed in Article 3, 5 or 7 of Directive 93/16 for the Member State which awarded it, that Member State may issue a certificate stating that the diploma in question was none the less awarded following training in accordance with the requirements of Directive 93/16. Under Article 9(5) of Directive 93/16, the host Member State is to recognise such a certificate as sufficient proof of the fact that the diploma submitted to it is treated by the Member State of origin as one of those mentioned for that State in Article 3, 5 or 7 of Directive 93/16, as appropriate.
78Second, Article 22 of Directive 93/16 allows the host Member State, in the event of justified doubts, to require from the competent institution of the Member State which awarded the diploma confirmation of the authenticity of the diploma, and also confirmation of the fact that the person concerned has fulfilled all the requisite training requirements.
79In those two cases, the authorities of the host Member State are, as a general rule, bound by such a certificate or such confirmation.
80Indeed, these two procedures do no more than give specific expression to a more general principle which has also been applied in other areas of Community law. The Court has held that when the competent authority of a Member State entertains serious doubts, which go beyond mere suspicion, about the authenticity or accuracy of a document, the issuing authority or institution must, on the application of the first authority, reexamine the basis of the document concerned and, where appropriate, withdraw it (see, as regards certificates stating that a migrant worker has pursued certain occupational activities in his Member State of origin, Joined Cases C-193/97 and C-194/97 De Castro Freitas and Escallier [1998] ECR I-6747, paragraphs 29 to 31, and, as regards social security certificates, Case C-202/97 FTS [2000] ECR I-883, paragraph 59).
81In the light of those considerations, the answer to the second question must be that the authorities of the host Member State are bound by a certificate, issued in accordance with Article 9(5) of Directive 93/16, which states that the relevant diploma is treated as one of the qualifications or designations set out in Article 3, 5 or 7 of the directive and was awarded following training in accordance with the provisions of Title III thereof. In the event of new factors coming to light which give rise to serious doubts as to the authenticity of the diploma submitted to them or as to whether it complies with the applicable rules, it is permissible for them to reopen the matter of verification with the authorities of the Member State awarding the relevant diploma.
Costs
82The costs incurred by the French, Belgian, Italian, Austrian and United Kingdom Governments and by the Commission, which have submitted observations to the Court, are not-recoverable. 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.
Operative part
On those grounds,THE COURT (Fifth Chamber),in answer to the questions referred to it by the Conseil d'Etat by decision of 29 January 2001, hereby rules:
1.The medical training required by Article 23(2) of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications may comprise training received even mainly in a third country, provided that the competent authority of the Member State awarding the diploma is in a position to validate the training and to conclude on that basis that it duly serves to meet the requirements for the training of doctors laid down by the directive.
2.The authorities of the host Member State are bound by a certificate, issued in accordance with Article 9(5) of Directive 93/16, which states that the relevant diploma is treated as one of the qualifications or designations set out in Article 3, 5 or 7 of the directive and was awarded following training in accordance with the provisions of Title III thereof. In the event of new factors coming to light which give rise to serious doubts as to the authenticity of the diploma submitted to them or as to whether it complies with the applicable rules, it is permissible for them to reopen the matter of verification with the authorities of the Member State awarding the relevant diploma.
Delivered in open court in Luxembourg on 19 June 2003.
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