Tennah-Durez v. Conseil National de L'ordre des Medecins (Case C-110/01) Before the Court of Justice of the European Communities (Fifth Chamber) ECJ (5th Chamber) Presiding, Timmermans P. 4th C; Edward ( Rapporteur), Jann, von Bahr and Rosas JJ. Francis Jacobs, Advocate General June 19, 2003 Doctors; Freedom of establishment; Qualifications; Training H1 Freedom of establishment-professions--doctors--qualifications--automatic and unconditional recognition--harmonisation of basic and specialist training-- co-ordination of requirements for taking up and pursuing the activities of a doctor-- Art.23(2) of Directive 93/16 specifying conditions of training-- length of training--contrast with Directive 89/48--latter only requiring broad equivalence-permitting additional requirements--period of adaptation-qualitative and quantitative training requirements in Directive 93/16-- excluding requirement of training being within the Community--onus on competent authority in diploma awarding State to ensure compliance with those qualitative and quantitative requirements--verification procedures--verification of training received in third country enabling such training to be taken into account in awarding diploma--need for legal certainty--mutual trust--no re-examination of conditions of training by host Member State for purposes of recognising diploma--serious doubts as to conformity with Community rules-- Art.9(5) of Directive 93/16--certificate stating diploma awarded following training complying with requisite conditions-onus on issuing authority to re-examine document. H2 Reference from France by the Conseil d'Etat (Council of State) under Art.234 EC. H3 T, of Algerian nationality, trained as a doctor in Algeria for six years. She then acquired Belgian nationality and was admitted to the seventh year of medical studies in a Belgian university which awarded her a basic medical diploma at the end of that year and a specific diploma in general medical practice after two further years of training. She applied to enrol as a medical practitioner in France but the French authorities refused to recognise her qualification under the Medical Directive 93/16. She appealed to the Conseil d'Etat, which referred questions concerning the interpretation of the directive to the Court of Justice on two issues. *418 The first was essentially whether the requirement

contained in other directives on mutual recognition of diplomas that the training should have been mainly in the Community should be read into Directive 93/16. The second issue was whether the competent authorities of the host Member State could look behind a certificate issued by the diploma awarding State, confirming that the diploma should be treated as falling within the directive, or whether they could make their own assessment of whether the minimum training requirements of the directive had been satisfied. Held: Distinction between different directives on mutual recognition in relation to their underlying principles H4 The rules governing the recognition of diplomas and professional qualifications laid down by Directive 89/48 and by Directive 93/16 were based on different principles. Community law made the award of a doctor's diploma by Member States subject to certain specific requirements, in order that the diploma was capable of being recognised automatically and unconditionally in all the Member States. Those requirements entailed a degree of harmonisation and co-ordination 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 co-ordination aspect). By contrast, the method applied in Directive 89/48 did not lead to automatic and unconditional recognition of the diplomas and professional qualifications concerned. The fact that Directive 89/48 referred to a condition that training should be received mainly in the Community was therefore not sufficient for it to be transferred and applied by analogy to the recognition of doctors' diplomas. [31]-[34] &[65]-[66] No requirement under Directive 93/16 for training to be exclusively or mainly in a Member State H5 Article 23(2) of Directive 93/16 did 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. Nor did the general scheme of the directive preclude the recognition of medical training which had been received partly outside the Community. [49]-[51]&[64] Qualitative and quantitative training requirements determining whether diploma eligible for recognition H6 For the purposes of the recognition of diplomas under Directive 93/16, the award of a doctor's diploma depended not on where the training had been provided but on whether it complied with the qualitative and quantitative training requirements laid down by the directive. Member States were precluded from awarding doctors' diplomas which did not comply with the requirements of the directive. Responsibility for ensuring that the training requirements laid down by Directive 93/16 were fully complied with fell wholly on the competent authority of the Member State awarding the diploma, which had to bear in mind that the diploma would enable its holder to move around and practise in all the Member *419 States as a result of its being recognised automatically and unconditionally. [52]-[56] Commission v Italy ( C-40/93): [1995] E.C.R. I-1319, followed. Measures for verification of training permitting third country training to be taken into account in awarding diploma H7 Directive 93/16 did not seek such complete harmonisation of training that there would be no need for verification procedures in the event of transfer from one institution

to another. If the competent authority in a Member State validated medical training received in a third country and concluded that it complied with the training requirements of the directive, that training might be taken into account in deciding whether to award a doctor's diploma. In such cases there was no reason in principle why the proportion of the medical training received in a third country should not represent as much as 85 per cent. of the total length of the requisite training. The diploma thereby awarded was one of Community origin entitling the other Member States to conclude that the competent authority of the Member State which awarded it had 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 was not jeopardised. [59]-[61]& [69] Limited scope for host Member State to question conformity of doctor's diploma with applicable Community rules H8 The Community system for the automatic recognition of diplomas, certificates and other evidence of medical qualifications 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. Where there was serious doubt as to the conformity of a doctor's diploma with the applicable Community rules, or as to the authenticity of the diploma, Arts. 9(5) and 22 of Directive 93/16 enabled the host Member State to seek confirmation that the diploma was eligible for automatic and unconditional recognition. These procedures gave specific expression to a more general principle that when the competent authority of a Member State entertained serious doubts, which went beyond mere suspicion, about the authenticity or accuracy of a document, the issuing authority or institution should, on application, re-examine the basis of the document concerned and, where appropriate, withdraw it. [75]-[80] De Castro Freitas and Escallier ( C 193-194/97): [1998] E.C.R. I-6747; Fitzwilliam Executive Search Ltd (FES) ( C-202/97): [2000] E.C.R. I-883; [2000] 1 C.M.L.R. 708, followed. H9 Cases referred to in the judgment: 1. Commission of the European Communities v Italy ( C-40/93), June 1, 1995: [1995] E.C.R. I-1319. 2. De Castro Freitas and Escallier v Ministre des Classes Moyennes et du Tourisme ( C 193-194/97), October 29, 1998: [1998] E.C.R. I-6747. 3. Fitzwilliam Executive Search Ltd v Bestuur van het Landelijk Instituut Sociale Verzekeringen ( C-202/97), February 10, 2000: [2000] E.C.R. I-883; [2000] 1 C.M.L.R. 708. *420 4. Hocsman v Ministre de l'Emloi et de la Solidarité ( C-238/98), September 14, 2000: [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025. H10 Further cases referred to by the Advocate General: 5. Carbonari and Others v Universita degli Studi di Bologna ( C-131/97), February 25, 1999: [1999] E.C.R. I-1103. 6. Commission of the European Communities v Spain (Re the Funding of Medical Training) ( C-277/93), December 6, 1994: [1994] E.C.R. I-5515; [1995] 1 C.M.L.R. 866. 7. Fédération Belge des Chambres Syndicales de Médecins ASBL v Belgium ( C-93/97),

July 16, 1998: [1998] E.C.R. I-4837. 8. Haim v Kassenzahnärztliche Vereinigung Nordrhein (KVN) ( C-319/92), February 9, 1994: [1994] E.C.R. I-425; [1994] 2 C.M.L.R. 169. 9. Ministre de la Santé v Erpelding ( C-16/99), September 14, 2000: [2000] E.C.R. I6821; [2002] 3 C.M.L.R. 19. 10. Tawil-Albertini v Ministre des Affairs Sociales ( C-154/93), February 9, 1994: [1994] E.C.R. I-451; [1995] 1 C.M.L.R. 612. H11 Representation Y Richard and S Mandelkern, avocats, for Malika Tennah-Durez. C-L Vier and J Barthélemy, avocats, for the Conseil National de l'Ordre des Médecins. G de Bergues and C Bergeot-Nunes, acting as Agents, for the French Government. F van De Craen and A Snoecx (in the oral proceedings only), both acting as Agents, for the Belgian Government. C Lewis, Barrister, (in the oral proceedings only), for the United Kingdom Government. U Leanza, acting as Agent, and G Aiello, avvocato dello Stato, for the Italian Government. C Pesendorfer, acting as Agent, for the Austrian Government. M Patakia, acting as Agent, for the Commission of the European Communities. OPINION AG1 [FN1]This case concerns the extent to which a Member State must accord automatic recognition to a medical qualification awarded to a Community national by the authorities of another Member State on the basis of training undertaken partly outside the Community. FN1 Opinion of AG Jacobs, delivered on June 6, 2002. AG2 It involves a Belgian national who, after six years of medical training in Algeria, was admitted to the seventh year of medical studies in a Belgian university which awarded her a basic medical diploma at the end of that year and a specific diploma in general medical practice after two further years of training. She now wishes to enrol as a medical practitioner in France, but the French authorities do not consider that her qualification has to be recognised under Council Directive 93/16 *421 . [FN2] FN2 Council Directive 93/16 of April 5, 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications: [1993] O.J. L165/1. Legislative background AG3 Under Art.43 EC, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State are prohibited. Article 47 EC provides for the adoption of Council directives regarding the mutual recognition of

qualifications and the harmonisation of national requirements for the taking-up and pursuit of self-employed activities. In the field of medicine, various Council directives have been adopted since 1975. AG4 The legislation presently in force is Directive 93/16 ("the Directive"), which is largely a consolidation of three previous measures dealing separately with the mutual recognition of medical qualifications [FN3]and with minimum training standards required for entitlement to practise medicine. [FN4]It applies (Title I) to medical practitioners who are nationals of Member States. Title II lists the diplomas in medicine and specialised medicine awarded in each Member State which must be automatically recognised in other Member States and contains further provisions dealing with various transitional situations, with the use of academic titles and with the effective exercise of the right of freedom of establishment and freedom to provide services, including conditions which may be imposed before the right to practise is granted. Title III coordinates training requirements in medicine and specialised medicine -- a prerequisite for the mutual recognition required by Title II [FN5] -- while Title IV deals with specific training in general medical practice. FN3 Council Directive 75/362 of June 16, 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services: [1975] O.J. L167/1. FN4 Council Directive 75/363 of June 16, 1975 concerning the co-ordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors: [1975] O.J. L167/14, and Council Directive 86/457 of September 15, 1986 on specific training in general medical practice: [1986] O.J. L267/26. FN5 This point is explicitly stated -- though, curiously, only with reference to specialist qualifications -- in the 14th recital in the preamble. AG5 Thus Art.2 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 Art.23 and which are listed in Art.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." AG6 The list in Art.3 includes the Belgian "Wettelijk diploma van doctor in de genees-, heel- en verloskunde". AG7 Under Art.9(5): "In the case of nationals of the Member States whose diplomas, certificates and other evidence of formal qualifications in medicine ... do not conform with the qualifications or designations set out in Art.3 ... 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 ... were awarded following training in accordance with

the provisions of Title III referred to ... in Art.2 ... and are *422 treated by the Member State which awarded them as the qualifications or designations set out ... in Art.3 ..." AG8 Article 22 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 [ inter alia, Art.3] and also confirmation of the fact that the person concerned has fulfilled all the training requirements laid down in Title III." AG9 In Title III, Art.23(1) provides that Member States are to require persons wishing to take up and pursue a medical profession to hold one of the qualifications referred to in Art.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." AG10 Article 23(2) stipulates that a "complete period of medical training of this kind must comprise at least a six-year course or 5,500 hours of theoretical and practical instruction given in a university or under the supervision of a university" and Art.23(3) requires candidates for such training to hold a qualification which entitles them to be admitted "to the universities of a Member State for the course of study concerned". AG11 Article 23(5) provides: "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." AG12 Articles 30 et seq. of the Directive lay down further requirements for specific training in general medical practice, which must last at least two years after completion of the six years referred to in Art.23. AG13 *423 The Directive has undergone some amendments of detail, but none -- before the material time in the present case -- which appear relevant to the issues. More recently, however, it has been amended by Directive 2001/19, which is to be implemented in the Member States before January 1, 2003, [FN6] and which inserts, inter alia, the following Art.42c: "Member States shall examine diplomas, certificates and other evidence of formal qualifications in the field covered by this Directive obtained by the holder outside the European Union in cases where those diplomas, certificates and other evidence of formal qualifications have been recognised in a Member State, as well as of training undergone

and/or professional experience gained in a Member State. The Member State shall give its decision within three months of the date on which the applicant submits his application together with full supporting documentation." [FN7] FN6 Directive 2001/19 of the European Parliament and of the Council of May 14, 2001 amending Council Directives 89/48 and 92/51 on the general system for the recognition of professional qualifications and Council Directives 77/452, 77/453, 78/686, 78/687, 78/1026, 78/1027, 80/154, 80/155, 85/384, 85/432, 85/433 and 93/16 concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor: [2001] O.J. L206/1. It appears that no Member States have yet notified the Commission of any implementing measures adopted to comply with Directive 2001/19. FN7 It is clear from recital 6 in the preamble that the introduction of this provision is intended to bring the Directive into line with the Court's case law in Haim ( C-319/92): [1994] E.C.R. I-425; [1994] 2 C.M.L.R. 169 and Tawil-Albertini ( C-154/93): [1994] E.C.R. I-451; [1995] 1 C.M.L.R. 612 (see point 18 below). AG14 The Commission appended a statement to Directive 2001/19, pointing out that the question of recognition of non-Community qualifications concerned a fairly small number of Community nationals but had already been discussed within the committees of representatives of the relevant national authorities. The Court had recently determined new principles to be applied by the Member States, [FN8] and the Commission would identify any situations not yet resolved and would propose appropriate solutions if necessary. FN8 In Hocsman ( C-238/98): [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025 (see point 18 below). At the hearing in that case, in apparent contradiction to the statement appended to Directive 2001/19, the Commission stated that it had received numerous complaints from professionals in Dr Hocsman's position in different Member States. AG15 Directive 93/16 is one of a series of "sectoral" directives laying down specific rules for mutual recognition of qualifications in certain professions. There is also a general system of recognition, governed in particular by Directives 89/48 and 92/51, [FN9] neither of which applies to professions having their own specific directives. However, it may be noted that the terms "diploma" and "certificate" as defined therein refer essentially to evidence of qualifications awarded by the authorities of a Member State attesting to the completion of education or professional training and entitling the holder to take up or pursue a regulated profession in that Member State, "provided that the 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 *424 Member State which recognised third-country evidence of education and training". [FN10]

FN9 Council Directive 89/48 of December 21, 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: [1989] O.J. L19/16; Council Directive 92/51 of June 18, 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48: [1992] O.J. L209/25. FN10 Art.1(a) and 1(b) of Directive 92/51; Art.1(a) of Directive 89/48 contains substantially identical provisions. AG16 Much more recently -- shortly after the hearing in the present case -- the Commission presented a draft directive [FN11] intended to consolidate and simplify the provisions both of the general system and of all the various sectoral directives, and it may be interesting to note some of the proposed provisions. FN11 Proposal for a Directive of the European Parliament and of the Council on the recognition of professional qualifications: COM (2002) 119 final of March 7, 2002. AG17 Article 2(2), for example, would allow each Member State to permit holders of non-Community qualifications to perform regulated professional activities on its territory in accordance with its rules, provided that, where minimum training conditions are laid down at Community level (as is the case for doctors), such initial recognition respects those minimum conditions. Article 3(1)(c) defines "evidence of formal qualifications" as "diplomas, certificates and other evidence issued by an authority in a Member State and certifying successful completion of professional training obtained mainly in the Community", [FN12] and under Art.3(3) evidence of formal training issued by a nonmember country would be regarded as such evidence of formal qualifications if the holder had three years' professional experience, certified by the Member State which recognised that evidence of formal qualifications in accordance with Art.2(2). FN12 Emphasis added. The Court's case law AG18 The question of recognition in one Member State of non-Community qualifications already recognised in another Member State, in professions covered by a sectoral directive, has been considered by the Court principally in Haim, [FN13] TawilAlbertini [FN14] and Hocsman. [FN15] Haim and Tawil-Albertini concerned the dental profession, governed by a separate though similar directive, whereas Hocsman, like the present case, concerned the medical profession, governed by Directive 93/16. FN13 Cited above. FN14 Cited above. FN15 Cited above. AG19 The rulings in all three judgments were essentially to the effect that a Community

national may not rely -- failing any specific provision to that effect -- on either of those sectoral directives in order to demand recognition in one Member State of a diploma awarded outside the Community (and with which the directive in question is thus not concerned) but none the less recognised in another Member State. However, Art.43 EC requires the authorities of the host Member State in such circumstances to compare all the qualifications and experience of the person concerned with those required for the practice of the relevant profession in that Member State. If they correspond entirely, the nonCommunity diplomamust be recognised; if they correspond only partially, those authorities are entitled to require the person concerned to show that he has acquired the knowledge and qualifications not attested. *425 [FN16] FN16 See in particular Hocsman, cited above, paras [35] and [36]. The facts and the main proceedings AG20 Dr Malika Tennah-Durez, originally of Algerian nationality, apparently received her secondary education near Lille in the north of France, then studied medicine for six years in Algeria, obtaining a doctorate in medicine in 1989. The last year of that training appears to have been spent as a junior hospital doctor in the Lille area. She continued working in a similar capacity in the same area until 1993, when she married a Belgian national (thereby acquiring Belgian nationality) and decided to pursue her medical studies in that country. AG21 In 1994, she was admitted to the seventh year of medical study at the University of Ghent, her Algerian diploma being accepted as sufficient to exempt her from the previous years, apparently on the basis of Art.45(5) of the Decree of 12 June 1991 relating to universities in the Flemish Community, [FN17] under which examinations passed in a Belgian or foreign institution of higher education may provide partial exemption from examination or a reduction in the duration of study. FN17 Moniteur Belge of July 4, 1991. AG22 In 1995 she was awarded the "academische graad van arts" which, although it does not bear the title mentioned in Art.3 of the Directive, is the diploma now awarded by Flemish universities for the purposes of that provision. It was said at the hearing that the change of name, after the adoption of the Directive, was notified to the Commission and to the authorities of the other Member States, in particular the Conseil National de l'Ordre des Médecins (Council of the national medical association, "the Conseil National") in France. AG23 Dr Tennah-Durez was enrolled as a medical practitioner in West Flanders on October 25, 1995. Over the following two years, she continued to study at Ghent and was awarded a specific diploma in general medical practice ("academische graad van huisarts") in 1997. She was authorised to practise as a general medical practitioner by ministerial decree of February 10, 1998. AG24 It would thus appear that she completed the seventh, eighth and ninth years of the full training course for general medical practitioners in Flanders, as described in paras [13] to [18] of the judgment in Fédération Belge des Chambres Syndicales de Médecins, [FN18] which corresponds to the training referred to in Arts 23 and 30of the Directive.

Under that system, the seventh year of study is both the final year of the seven-year course of study for the basic medical diploma governed by Art.23 of the Directive and the first year of the three-year course of study for the specific diploma in general medicine in accordance with Art.30. FN18 Fédération Belge des Chambres Syndicales de Médecins ( C-93/97): [1998] E.C.R. I-4837. AG25 In March 1998, Dr Tennah-Durez, wishing to return to the Lille area and practise there, applied to be enrolled on the local medical register. She was registered on September 10, 1998 on the basis of her Belgian diplomas and of a certificate -- requested by the French authorities because the designation of her basic diploma was not as listed in Art.3 -- from the Belgian Ministry of Health attesting that she possessed the statutory Belgian diploma for a medical doctor and that her specific diploma as a general practitioner was in accordance with the Directive. AG26 However, the same ministry then sent three more communications concerning the first Belgian diploma: the first stating that it was not awarded in accordance with Art.23 of the Directive because six of the seven years of study had taken place *426 abroad (although the second diploma was entirely in accordance with the Directive); the second stating that it was indeed the diploma referred to in Art.3 of the Directive and entitled Dr Tennah-Durez to practise medicine in Belgium; and the third certifying that she had completed at least 5,600 hours of theoretical and practical instruction in the course of her studies for her medical diploma (presumably including her training in Algeria). A certificate similar to the third was also issued by the University of Ghent. AG27 In those somewhat confused circumstances, the local medical association withdrew its decision to register Dr Tennah-Durez, only to have that withdrawal annulled by the regional association. But that latter decision was itself overturned on April 28, 1999 by the disciplinary section of the Conseil National, essentially on the ground that Dr Tennah-Durez had not completed a sufficient number of hours of study in Belgium to satisfy the requirements of Art.23 of the Directive, and that under Art.23(5) the recognition in Belgium of her period of study in Algeria had no compulsory effect in France. It also considered (its decision was before the judgment in Hocsman) that Art.52 of the EC Treaty (now, after amendment, Art.43 EC) could not apply. AG28 Dr Tennah-Durez appealed to the Conseil d'Etat (Council of State), which has stayed the proceedings and seeks a preliminary ruling on the following questions: "(i) Are the provisions of Art.23(2) of Council Directive 93/16 of April 5, 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 5,500 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? (ii) Are the national authorities bound by the certificate provided, pursuant to Art.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 Art.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?" AG29 Written observations have been submitted by Dr Tennah-Durez, the Conseil National, the Austrian, Belgian, French and Italian Governments and the *427 Commission. The United Kingdom Government presented oral argument at the hearing, as did those who submitted written observations, except the Austrian and Italian Governments. The first question AG30 It is clear from Art.23(5) that a person who holds a non-Community basic medical diploma which has been recognised in one Member State cannot rely on the Directive as it stands in order to obtain automatic recognition in other Member States. That was Dr Hocsman's situation, but Dr Tennah-Durez's case is different. Her Algerian basic medical diploma was not recognised as such in Belgium but was accepted as exempting her from the first six years of medical training in that Member State; after a further year of training there she was awarded a Belgian diploma. She is not seeking recognition in France of her Algerian diploma or training but of her Belgian diploma. AG31 Nor is it disputed that Dr Tennah-Durez was awarded that diploma after completing at least the number of hours and years of medical training required by Art.23(2) of the Directive, or that her training was received in or under the supervision of a university. Moreover, although the point has not been discussed, it is perhaps unlikely that her training failed to provide her with the knowledge and experience outlined in Art.23(1). [FN19] The possible stumbling-block is the fact that six of her seven years of training prior to the award of her basic diploma took place in or under the supervision of a university in a non-member country. [FN20] FN19 See point 9 above. FN20 Although the sixth year appears to have been certified by -- and may thus perhaps be considered to have taken place under the supervision of -- the University of Lille II, in France. AG32 Dr Tennah-Durez has stressed that, in addition to having her knowledge and experience accepted by the Belgian authorities as exempting her from the first six years of training, she passed the same final examination as those who had studied entirely in Belgium and was thus demonstrably of the same level as her colleagues whose identical diplomas qualified for automatic recognition. Other Member States can have no less confidence in the standard demonstrated by her results than in that demonstrated by any other holder of a Belgian diploma. AG33 Those arguments are not unreasonable, and might be supported by the wording of Art.23. Paragraph 2 of that provision requires the relevant instruction to be given in or under the supervision of "a university", with no further specification, while para.3

requires candidates for medical training to hold a qualification entitling them to admission to "the universities of a Member State". If, in Art.23(2), the legislature had meant "a university of a Member State", might it not have been expected to say so? AG34 However, it is important to recognise that an essential feature of the Directive is that automatic mutual recognition of diplomas goes hand-in-hand with co-ordination of the provisions governing access to the medical profession, including training requirements, and is based on mutual trust as to the comparable standard of qualifications throughout the Community. AG35 That trust concerns in my view primarily the training given rather than the verification of knowledge and experience. Article 23(1) of the Directive refers to a qualification which guarantees that the holder has acquired certain knowledge and *428 experience during a complete training period, not that he or she possesses that knowledge and experience, and Art.23(2) lays down material requirements for the training. Moreover, the skills needed to practise medicine are acquired over a relatively long period and will normally be assessed at many stages over that period, not simply at the end of the final year. Important though a final assessment undoubtedly is, there would be obvious pitfalls in assessing a person's fitness to practise medicine on that basis alone. AG36 If the mutual trust in question is between Member States and is based primarily on training then it would seem to follow that it must be based on training in the Community -- instruction given in or under the supervision of a university of a Member State. The first recital in the preamble to Directive 75/363, [FN21] a precursor of the present Directive, noted moreover that it was "the comparable nature of training courses in the Member States" which enabled co-ordination to be confined to "the requirement that minimum standards be observed", and the element of mutual trust in training given in a Member State has been stressed by the Court in comparable contexts with regard to dental qualifications [FN22] and specialist medical qualifications. [FN23] FN21 Cited above. FN22 See Tawil-Albertini, cited above, paras [11] and [12]. FN23 See Carbonari and Others ( C-131/97): [1999] E.C.R. I-1103, paras [38] to [43]. AG37 Furthermore, as the Directive now stands, Art.23(5) clearly excludes from automatic recognition a non-Community diploma whose holder has been authorised to practise medicine in a Member State. Any distinction between that situation and one in which the Member State had recognised not the diploma but the training acquired outside the Community -- by awarding a new diploma on the basis of that training -- would be artificial and liable to deprive Art.23(5) of any real effect. [FN24] That holds true even if authorisation to practise is based on a real assessment of knowledge and experience since, as I have said, the basis for automatic recognition under the Directive lies not in success in an examination but in completion of training in conjunction with such success. FN24 I am assuming for the moment instruction given entirely within or entirely outside the Community -- I shall consider the "mixed" situation below (point 38 et seq.).

AG38 But a significant feature of Dr Tennah-Durez's situation is that part of her training was acquired in or under the supervision of a university in a Member State. Can a diploma awarded by a Member State in such circumstances qualify for automatic recognition and, if so, what proportion of the training must have taken place in the Community? A number of submissions have been made to the Court on that question. AG39 The Italian Government considered that training must be given or supervised in its entirety by a university in a Member State. The United Kingdom however was concerned that courses involving limited exchange visits to universities outside the Community should not be excluded, while the Austrian and French Governments, together with the Commission, considered essentially that the proper criterion was that the major part of the training -- including in particular in the submission of the French Government and the Commission the final part -- should be in the Community. AG40 The Belgian Government, on the other hand, whilst accepting that Dr TennahDurez's basic diploma was not awarded in accordance with Art.23 of the *429 Directive because her training was acquired mainly outside the Community, pointed to a possible anomaly that might ensue from a strict rule requiring morethan half of the training to be acquired in the Community: a candidate with a certain level of knowledge and experience acquired outside the Community might qualify for admission into the fifth of seven years of study in a Member State with the result that his or her diploma could not qualify for automatic recognition, whereas a candidate with a lower level, admitted only into the fourth year, would obtain a diploma that would have to be recognised. AG41 Whilst a rule that more than half of the training on the basis of which a Community diploma was awarded, including the final year or years of that training, must have been acquired in the Community in order for the diploma to qualify for automatic recognition seems in no way unreasonable, I can discern no basis for it in the Directive as it stands. On the contrary, it would appear clear from the provisions as I have analysed them above that all the training must be given or supervised by a university in a Member State. The specific acceptance of training undertaken partly outside the Community in the general system, [FN25] coupled with the absence of any reference to it in the Directive, tends to confirm that view. FN25 See point 15 above. AG42 There are however two important points to be made in that regard. AG43 The first is that the words "under the supervision of" allow a certain latitude and in particular allow a Community university to send its students for part of their training in an establishment with which it has links in a non-member country, without thereby disqualifying the diploma awarded from automatic recognition under the Directive, provided that the training is indeed under the university's supervision -- in other words that the university plays an active role with regard to the content and quality of the instruction given. [FN26] It would appear similarly acceptable for a Community university to admit to a year of study other than the first a student who had begun training in a university outside the Community with which it had links of a similar kind and over whose instruction it exercised such supervision. That, however, was not the case for Dr Tennah-Durez whose training in Algeria (or at least the first five years of it) seems to have taken place entirely outside the control of a university in the Community.

FN26 In at least the majority of the language versions of the Directive, the term "supervision" and its equivalents -- "Aufsicht", "orientaçao", "surveillance", "tilsyn", "toezicht" etc. -- imply active control rather than passive verification. AG44 The second is that Community legislation is evolving in the field of mutual recognition of qualifications in general and that as it evolves a tendency can be seen towards greater acceptance of training outside the Community as an element in a qualification worthy of automatic recognition throughout the Community. Whilst the first stages of co-ordination and recognition may have been based on a more limited degree of mutual trust between Member States, circumstances seem to be increasingly propitious for the legislature to adopt provisions based on a broader degree of trust extending not only to training provided in other Member States but also to training and qualifications obtained outside the Community but recognised in those States. AG45 Thus Art.42c of the Directive, which must be implemented before January 1, 2003, [FN27] confirms the requirement in the case law that non-Community medical *430 diplomas recognised in one Member State must be taken into consideration in other Member States. And if the Commission's proposal [FN28] is adopted, such a diploma will qualify for automatic recognition once its holder has three years' professional experience certified by the first Member State, as will a diploma awarded in a Member State but based partly (though not mainly) on training acquired outside the Community. FN27 See point 13 above. FN28 See points 16 and 17 above. AG46 I therefore take the view that as the law stands -- and without casting the slightest doubt on the quality of medical training in non-member countries, which will often be of a standard equal to and in some cases higher than that dispensed in Member States -- the mutual trust on which the Directive is based requires Art.23(2) to be interpreted as referring solely to theoretical and practical instruction given in, or under the supervision of, a university in a Member State. The second question AG47 The Directive co-ordinates minimum training requirements so that qualifications awarded on the basis of those requirements are recognised throughout the Community. Where a Member State awards in accordance with Art.23 a diploma, certificate or other evidence of formal qualification listed in Art.3, that qualification must be recognised, automatically and unconditionally, in the other Member States. [FN29] There must moreover be a presumption that a qualification listed in Art.3 is awarded in accordance with Art.23, since otherwise the whole system could easily be disabled and the aim of facilitating freedom of movement for doctors considerably impaired. FN29 See also Hocsman, cited above, para.[33]; Erpelding ( C-16/99): [2000] E.C.R. I6821; [2002] 3 C.M.L.R. 19, para.[23], and, with regard to the previous directives, Commission v Spain ( C-277/93): [1994] E.C.R. I-5515; [1995] 1 C.M.L.R. 866, paras

[13] and [14]. AG48 The role played by Arts 9(5) and 22 within that overall scheme seems clear. AG49 In accordance with Art.9(5), if a qualification is not listed in Art.3, it must still be recognised if the issuing Member State certifies it to have been awarded following training in accordance with Art.23. [FN30] Conversely, if no such certificate is issued, there is no requirement for automatic recognition in the context of the Directive. FN30 It is true that Art.9, which is entitled "Existing circumstances", deals largely with problems raised by qualifications and/or training acquired or commenced before the adoption of the Directive. Thus, Art.9(5) might be thought, as the United Kingdom suggested at the hearing, to cover only qualifications no longer awarded under the same designation but none the less attesting to training in accordance with Art.23. There is however nothing in its wording to limit it in that way, and it seems reasonable and desirable that it should also cover changes in designation after the adoption of the Directive. AG50 Under Art.22 the authorities of the host Member State may also in the event of justified doubt ask the issuing Member State for confirmation that the training was indeed in accordance with Art.23; again recognition must be automatic and unconditional if such confirmation is given but if not the situation falls outside the scope of the Directive. [FN31] I would stress however that Art.22 applies only exceptionally and in the event of justified doubt -- such as might be raised by specific information contained in the application for recognition, for example -- rather than mere suspicions derived from, say, the applicant's original nationality; it does not entitle national authorities to indulge in delaying tactics or fishing *431 expeditions, conduct which would run completely counter to the spirit of the Directive. FN31 Arts 2, 3 and 23 apply to basic qualifications in medicine. Parallel provisions to which the same considerations apply are to be found for specialised qualifications common to all Member States in Arts 4, 5, 24 to 26 and 29 and for specialised qualifications peculiar to two or more Member States in Arts 6, 7, 24, 25, 27 and 29. AG51 In the present case, the Belgian authorities do not appear at any stage to have certified that Dr Tennah-Durez's basic diploma or the training on which it was based were in accordance with Art.23. Rather, they gave various indications from which, taken together, it was difficult to conclude unequivocally either that the diploma must be automatically recognised or that it did not qualify for such recognition. Although, as regards its designation, the diploma was clearly stated to correspond to that listed in Art.3, it was also stated not to be in accordance with Art.23 because six of the seven years of training involved were not undertaken in Belgium. AG52 There was thus no certificate issued under Art.9(5) stating that the diploma was awarded following training in accordance with Art.23, although such a certificate, had it been issued, would have been binding on the French authorities. In addition, those authorities may have had real grounds for questioning whether Dr Tennah-Durez had completed seven years of full-time training in Belgium immediately prior to the award of

her diploma, so that arequest under Art.22 was appropriate. The precise situation was in any event unclear without closer scrutiny. AG53 In such clearly exceptional circumstances, it was in my view both acceptable and proper for the French authorities first to examine the qualification more thoroughly in order to ascertain its status in the light of the Directive with a view to deciding whether it should be granted recognition on the basis of that status. Article 43 EC AG54 However, it is not enough to note that, as I have concluded in the context of the national court's first question, in the light of such an examination Dr Tennah-Durez's Belgian diploma does not qualify for automatic, compulsory recognition under the Directive. It is also necessary, under Art.43 EC as interpreted by the Court and in accordance with the new Art.42c of the Directive, whenever a Community national holding medical qualifications obtained outside the Community wishes to practise medicine in a Member State other than his or her home State, to carry out a further individual and objective assessment of that person's situation. AG55 That obligation has been most recently and most clearly stated by the Court in Hocsman [FN32]: "where, in a situation not regulated by a directive on mutual recognition of diplomas, a Community national applies for authorisation to practise a profession access to which depends, under national law, on the possession of a diploma or professional qualification, or on periods of practical experience, the competent authorities of the Member State concerned must take into consideration all the diplomas, certificates and other evidence of formal qualifications of the person concerned and his relevant experience, by comparing the specialised knowledge and abilities certified by those *432 diplomas and that experience with the knowledge and qualifications required by the national rules". FN32 Cited above, para.[40]. AG56 Thus Dr Tennah-Durez's Belgian diploma, although it does not qualify for automatic, compulsory recognition under the Directive, must be taken into account by the French authorities, together with her Algerian diploma and the training on which it was based including her final year of training in France, her subsequent professional activity in France over the following three or four years, her two years of specific training in general medical practice in Belgium and the diploma awarded to her as a result, and any other professional experience she may have gained in Belgium or elsewhere. Only if the knowledge and abilities evidenced by those qualifications and experience fall short of those required by the national rules are the French authorities entitled to require Dr Tennah-Durez to show -- solely -- that she has acquired the skills not attested. [FN33] FN33 See also Hocsman, cited above, paras [35] and [36] of the judgment. AG57 Although the Court is in no position to carry out such an assessment, I suggest that there would have to be some very strong reason indeed before it could properly be found that the knowledge and abilities of a person who has completed five years of medical training in a non-member country, followed practically without interruption by six or

seven years of medical training and professional activity within the Community, fall short of the standard required to practise medicine in the Community. AG58 If that were to be the finding, however, an adequately-reasoned decision, against which an appeal must lie, would have to be given. [FN34] Moreover, as from January 1, 2003, such a decision must be given within three months in accordance with the new Art.42c of the Directive. That latter requirement would appear to have the consequence that, if faced with a situation of uncertainty as to the status of a qualification for the purposes of automatic recognition, national authorities will not be entitled to postpone a decision based on an assessment of all the applicant's qualifications until after the uncertainty has been resolved, unless both steps can be completed within the three months. FN34 See point 50 of my Opinion in Hocsman, cited above, and the case law cited there. Conclusion AG59 I am therefore of the opinion that the Court should answer the questions raised by the Conseil d'Etat in the following manner: -- Article 23(2) of Council Directive 93/16 is to be interpreted as referring solely to instruction given in, or under the supervision of, a university in a Member State. -- The authorities of a Member State, asked to recognise a diploma, certificate or other evidence of formal qualifications listed in Arts 3, 5 or 7 of Directive 93/16, are in principle bound by a statement from the competent authorities of the issuing Member State that such a document is a qualification listed in the relevant article and was awarded following training in accordance with the£ relevant provisions of Title III of that Directive. *433 However, where such a statement -- which may be requested only in the circumstances set out in Art.9(5) or 22 of that Directive -- is equivocal, they may examine the qualification in order to ascertain its status in the light of the Directive. -- Where a Community national holding a medical qualification which has been awarded in a Member State and is listed in Directive 93/16, but does not attest to training acquired entirely in accordance with Art.23 thereof, applies for authorisation to practise medicine in another Member State, the competent authorities of the latter must take into consideration all the diplomas, certificates, other evidence of formal qualifications and relevant experience of the person concerned, by comparing the knowledge and abilities thereby evidenced with those required by the national rules, and may not refuse authorisation unless they fall short of those requirements and the applicant cannot show that he has acquired the knowledge and abilities not attested to. JUDGMENT 1 By decision of January 29, 2001, received at the Court on March 9, 2001, the Conseil d'Etat (Council of State) referred to the Court for a preliminary ruling under Art.234 EC two questions on the interpretation of Art.9(5) and Art.23(2) of Council Directive 93/16 of April 5, 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications. [FN35] FN35 [1993] O.J. L165/1.

2 Those 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 3 In 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. 4 Thus, Art.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 Art.23 and which are listed in *434 Art.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." 5 Article 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 Art.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; ..." 6 Article 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 Arts 24, 25, 26, and 29 and which are listed in Art.5, by giving such qualifications the same effect in its territory as those which the Member State itself awards." 7 Article 5 of Directive 93/16 provides: "1. The diplomas, certificates and other evidence of formal qualifications referred to in Art.4 shall be those which, having been awarded by the competent authorities or bodies listed in para.2 correspond, for the purpose of the specialised training concerned, to the qualifications recognised in the various Member States and listed in para.3. 2. The diplomas, certificates and other evidence of formal qualifications awarded by the competent authorities or bodies referred to in para.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; ..." 8 Article 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. 9 Article 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 para. (5): *435 "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 Art.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 Art.2, 4 or 6, and are treated by the Member State which awarded them as the qualifications or designations set out, as appropriate, in Art.3, 5 or 7." 10 Article 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." 11 Article 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 Art.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 5 500 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. *436 ... 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." 12 Council Directive 89/48 of December 21, 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 [FN36] and Council Directive 92/51 of June 18, 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48 [FN37] define, for their respective purposes, what is meant by diploma. FN36 [1989] O.J. L19/16. FN37 [1992] O.J. L209/25. 13 Article 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. 14 Article 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. 15 Directive 2001/19 of the European Parliament and of the Council of May 14, 2001 amending Council Directives 89/48 and 92/51 on the general system for the recognition of professional qualifications and Council Directives 77/452, 77/453, 78/686, 78/687, 78/1026, 78/1027, 80/154, 80/155, 85/384, 85/432, 85/433 and 93/16 concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor [FN38] altered the system for mutual recognition for the purpose inter alia of simplifying the updating of the lists of qualifications eligible for automatic recognition. FN38 [2001] O.J. L206/1. French legislation 16 Article 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 Art.L.356-2 *437 ... 2. a French national or a national of one of the other Member States of the European Economic Community ...". 17 Under Art.L.356-2 of the Code: "The diplomas, certificates and other evidence of formal qualifications required under Art.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 ...". 18 Article 2 of the Decree of June 18, 1981, [FN39] 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 May 20, 1929". FN39 JORF of June 28, 1981, p.5986. 19 Article 3-1 of the Decree of June 18, 1981, as amended, which incorporates Art.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 Art.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 Art.2 or 3 of this decree." The main proceedings and the questions referred for a preliminary ruling 20 Mrs 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 September 28, 1995. 21 Mrs Tennah-Durez also enrolled for specific training as a general medical practitioner, namely an eighth and ninth year of medicine at Ghent University, on *438 completion of which she was awarded the medical qualification known as the degree of " huisarts" ("the Belgian huisarts diploma") on September 29, 1997. She was authorised to practise as a general medical practitioner by Belgian ministerial order of February 10, 1998.

22 Since 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 Art.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"). 23 The Belgian Ministry issued an initial certificate on July 23, 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 September 28, 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 February 10, 1998 following specific training in general medical practice of at least two years in accordance with Art.30 of Directive 93/16". 24 However, in a second letter dated October 6, 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 Arts 31 and 32 of Directive 93/16, 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 Art.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." 25 In a third letter, dated October 14, 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 Art.3 of Directive 93/16". 26 Meanwhile, on the basis of the letter from the Belgian Ministry of October 6, 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 regional"), 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 October 26, 1998 stating that Mrs Tennah-Durez had completed "at least 5,600 hours (of theory and practice) of medical training, which *439 exceeds the 5,500 hours referred to in Art.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. 27 The 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'Etat, alleging misuse of powers. 28 Since it was in doubt as to the correct interpretation of the Community law applying in

this area, the Conseil d'Etat decided to stay proceedings and refer the following questions to the Court for a preliminary ruling: 1. Are the provisions of Art.23(2) of Council Directive 93/16 of April 5, 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 5,500 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 Art.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 Art.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 29 Article 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 Art.23 and listed in Art.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. 30 Recognition 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. [FN40] It is underpinned by the Member States' mutual trust in the adequacy *440 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. FN40 See Hocsman ( C-238/98): [2000] E.C.R. I-6623; [2000] 3 C.M.L.R. 1025, para.[33]. 31 Hence, 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 co-ordination 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 co-ordination aspect). 32 The 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. 33 That 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 post-secondary 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. 34 That 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. 35 The questions referred for a preliminary ruling must be answered in the light of those observations. The first question 36 By its first question, the national court seeks to ascertain to what extent the medical training required by Art.23(2) of Directive 93/16 may consist of training completed in a third country. Observations submitted to the Court 37 Mrs 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. 38 It 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 *441 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 Art.23 of Directive 93/16. 39 The 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. 40 Since 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 Art.43 EC. The Conseil national none the less acknowledges that under Art.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. 41 Although 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. 42 The 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. 43 The 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. 44 It 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. 45 The 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. 46 *442 At 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. 47 The 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 48 Article 23(2) of Directive 93/16 provides that the medical training referred to in Art.23(1) must comprise at least a six-year course or 5,500 hours of theoretical and practical instruction given in a university or under the supervision of a university.

49 That 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. 50 It 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, Art.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 Art.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 Art.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. 51 Nor 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. 52 Directive 93/16 thus does not specify either expressly or by implication the extent to which the medical training required by Art.23(2) may comprise training received in a third country. 53 That 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. 54 In 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 *443 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. [FN41] FN41 See to that effect, in relation to dental diplomas, Commission v Italy ( C-40/93): [1995] E.C.R. I-1319, para.[24]. 55 Contrary to what has been suggested in some of the observations submitted to the Court, in particular those of the Commission, [FN42] 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.

FN42 See para.[44] above 56 In 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. 57 A 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. 58 It 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. 59 Although 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. 60 Consequently, 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. 61 That 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 *444 before the national court) as much as 85 per cent of the total length of the requisite training provided that the condition mentioned in the preceding paragraph is met. 62 Several 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. 63 That argument cannot be accepted. 64 Directive 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. 65 Next, 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 paras [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. 66 Furthermore, 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 Art.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 Art.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. 67 Finally, 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 *445 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. 68 The situation of the applicant in the main action can be distinguished from the situation referred to in Art.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. 69 The 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. 70 In the light of those considerations the answer to the first question must be that the medical training required by Art.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 71 By 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 Art.9(5) of Directive 93/16, which states that the diploma concerned is treated as one of the qualifications or designations set out in Art.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 72 Mrs 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. 73 The 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 para.[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. 74 The French Government and the Commission submit that the Belgian authorities did not issue a certificate of conformity as provided for in Art.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. *446 Reply of the Court 75 Since the aim of the Community system for the recognition of diplomas, certificates and other evidence of medical qualifications, as described in paras [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. 76 However, 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. 77 First, if the diploma does not conform with the designations listed in Art.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 Art.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 Art.3, 5 or 7 of Directive 93/16, as appropriate. 78 Secondly, Art.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. 79 In those two cases, the authorities of the host Member State are, as a general rule, bound by such a certificate or such confirmation. 80 Indeed, 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, re-examine the basis of the document concerned and, where appropriate, withdraw it. [FN43] FN43 See, as regards certificates stating that a migrant worker has pursued certain occupational activities in his Member State of origin, De Castro Freitas and Escallier ( C 193-194/97): [1998] E.C.R. I-6747, paras [29] to [31], and, as regards social security certificates, FTS ( C-202/97): [2000] E.C.R. I-883; [2000] 1 C.M.L.R. 708, para.[59]. 81 In 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 Art.9(5) of Directive 93/16, which states that the relevant diploma is treated as one of the qualifications or designations set out in Art.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 re-open *447 the matter of verification with the authorities of the Member State awarding the relevant diploma. Costs 82 The 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. R1 Order On those grounds, THE COURT (Fifth CHAMBER), in answer to the questions referred to it by the Conseil d'Etat by decision of January 29, 2001,

HEREBY RULES: 1. The medical training required by Art.23(2) of Council Directive 93/16 of April 5, 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 Art.9(5) of Directive 93/16, which states that the relevant diploma is treated as one of the qualifications or designations set out in Art.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 re-open the matter of verification with the authorities of the Member State awarding the relevant diploma. (c) Sweet & Maxwell Limited [2004] 1 C.M.L.R. 13