A. Expertise in the Internal Market

First, the foundation of medical professionalism is the expertise that is possessed by doctors. This expertise is primarily based on their extensive training. The training to become a basic doctor takes six years, and the additional training to qualify in a medical specialty could take another four to six years.Footnote ¹⁹ In the context of the internal market, the Professional Qualifications Directive has introduced automatic mutual recognition of professional qualifications of doctors. This automatic recognition is based on the co-ordination of minimum training requirements. The Directive covers both permanent establishment in another Member State,Footnote ²⁰ and the temporary provision of services by doctors in another Member State.Footnote ²¹

The focus of the Directive is primarily on access to the medical profession in other Member States—it does not regulate the exercise of the medical profession in another Member State.Footnote ²² The provision of medical care itself is not directly regulated by the Directive. This is linked to Article 168(7) TFEU, which provides that the EU does not have the competence to harmonise the delivery of health services and medical care. Because of the Directive's focus on access to the profession, the Treaty provisions continue to have an important role when it comes to restrictions on free movement in the exercise of the profession. Article 45 TFEU could be relied on by doctors who are employed in another Member State, while Article 49 TFEU would be applicable to self-employed doctors. Article 56 TFEU could be relied on by doctors who provide services in another Member State on a temporary basis. The Directive requires that Member States automatically recognise the qualifications of doctors who trained and qualified in another Member State. This recognition is automatic and based on the harmonisation of the minimum training requirements of doctors. Supervisory authorities in the Member States are not allowed to carry out detailed checks of the qualifications—they must accept that a doctor who has qualified as a doctor in another Member State is good enough to practise medicine in their country.

The Professional Qualifications Directive could be considered a threat to medical professionalism because of its quantitative approach to the harmonisation of the substance of medical training. The Directive has harmonised the minimum training requirements for doctors with basic training, doctors with specialist training and general medical practitioners in the EU. For each of these groups, the Directive provides for a minimum period of training. If a doctor satisfies these basic criteria, the Member State must recognise their professional qualifications—there is no discretion to refuse recognition. Although the Directive expressly refers to ‘minimum training requirements’,Footnote ²³ it does not in fact constitute minimum harmonisation. It is not possible for Member States to impose higher requirements on doctors from other Member States. Once a doctor from another Member State satisfies the minimum training requirements, their qualification must be accepted. It would be possible for Member States to increase their own training requirements, but this would not have a direct impact on their ability to refuse to recognise the qualifications of doctors from other Member States. With such a system, it becomes very important to determine what the minimum level of training across the EU should be. This is why European professional associations of doctors play an important role in the adoption of European standards on medical training for different specialties.Footnote ²⁴

B. Duty of Care in the Internal Market

Second, the next foundation of medical professionalism is the concept of duty. The high level of expertise of doctors is ‘translated’ into a number of duties imposed on doctors. The doctor's duty of care towards their patients has traditionally been laid down in the Hippocratic oath.Footnote ²⁵ The doctor's primary duty is towards their patient: the patient's interests should always be put first.Footnote ²⁶ Moreover, the duty imposed by medical professionalism means that doctors should not be affected by external factors or influences in providing medical care to patients. Financial gain should never be a motive to provide a particular treatment. This aspect of medical professionalism has come under pressure with the rise of private healthcare because medical treatment is provided in a professional setting that is inherently more focussed on profit-making than public healthcare systems.Footnote ²⁷ Finally, the concept of duty requires that doctors recognise their own limitations, and that they only carry out procedures for which they possess the required level of skills and expertise.

The concept of duty of care, which focusses on the doctor's duties in the patient-doctor relationship, is not directly regulated by the Professional Qualifications Directive. Nevertheless, the Directive does have an indirect effect on the patient-doctor relationship. One important example is the Directive's emphasis on language requirements. The recent amendments to the Directive have increased the ability of supervisory authorities to verify the language requirements of doctors who seek to practise in another Member State.Footnote ²⁸ Language skills are fundamentally important to the patient-doctor relationship, and to the ability of patients to provide informed consent.Footnote ²⁹ As such, the Directive's increased emphasis on language requirements helps to protect medical professionalism in a transnational context.

In a broader sense, free movement of doctors could put the doctor's duty towards their patients at risk, because free movement rights are based on the exercise of economic activity. Free movement law could encourage doctors to act like entrepreneurs rather than medical professionals. This argument should be dismissed in so far as the free movement of workers under Article 45 TFEU is concerned. Although it is true that doctors must receive remuneration to be able to rely on Article 45 TFEU, this is not in any way different from a doctor who works in their home Member State. This would be different in the field of free movement of establishment, because doctors who are relying on Article 49 TFEU are self-employed. As such, they are not only financially independent—they are also responsible for ensuring that they make sufficient financial profit. In these circumstances, in making decisions about the proposed treatment for a patient, a doctor could be influenced by financial considerations in such a way that it would put medical professionalism at risk. However, again, this development would not be significantly different from self-employed doctors who are working in their home Member State. The impact of profit-making as a motive would be similar for these doctors without free movement law playing a significant role in this process.

The free movement provision that is most likely to put the doctor's duty to their patients at risk is Article 56 TFEU. This is primarily because of the temporary nature of the freedom of services. If a doctor provides services to patients in another Member State on a temporary basis and returns to their home Member State shortly after the treatment, this makes it more difficult to guarantee consistency in the treatment of the patient. It is difficult for the doctor to provide after-care to a patient after having returned to their home Member State. Furthermore, it is more difficult for doctors to assess the clinical situation of their patient from a distance.

C. Accountability in the Internal Market

Third, the final foundation of medical professionalism is that doctors are held accountable for their actions in the exercise of their duty of care towards patients. Historically, because of the status of doctors in society and the autonomy of the medical profession, the extent to which doctors were held accountable was limited.Footnote ³⁰ This has changed significantly in the last decades. Doctors now have to be prepared to account for their actions in a plethora of legal (and non-legal) fora. First, doctors are increasingly held liable in private law. The most likely avenue for patients to seek compensation from their doctors is tort law. If a patient has been treated in a private clinic, and there is a contractual relationship with their doctor or the clinic, patients can also bring an action in contract law. Second, proceedings may be brought against doctors in public or administrative law. This can relate to the licensing of clinics or hospitals.Footnote ³¹ At the individual level, professional discipline is the most common way in which proceedings might be brought against a doctor.Footnote ³² Article 5(3) of the Professional Qualifications Directive provides that doctors who are providing services in another Member State are subject to professional discipline in the host Member State. Similarly, doctors who establish themselves in another Member State on a permanent basis—whether on the basis of Article 45 or 49 TFEU—have to register and become subject to professional discipline in the host Member State. Third, doctors are increasingly held liable in criminal law.Footnote ³³ The application of criminal law is reserved for the most serious cases of medical failure, in which the doctor's actions have fallen seriously below the standards that could be expected from a doctor. In these cases, it is no longer only the individual patient to whom the doctor is held responsible—the doctor is held accountable to society.

In the literature, one of the key risks which has been identified is that doctors are able to rely on free movement law to ‘escape’ disciplinary sanctions imposed in one host Member State by moving to another Member State where they could continue to practise without any restrictions.Footnote ³⁴ As such, free movement law could facilitate ‘bad doctors’ in their attempts to escape accountability.Footnote ³⁵ The automatic recognition of qualifications under the Professional Qualifications Directive makes it more difficult for Member States to investigate the qualifications of doctors who qualified in another Member State. In the last decade, Member States have come to understand that there is a real risk to patient safety if incompetent doctors can continue to move freely between Member States. For that reason, in 2013, several changes were made to the Professional Qualifications Directive, including the introduction of an Alert Mechanism.Footnote ³⁶ This mechanism requires Member States to be more proactive in the exchange of information about service providers whose right to practise in the home Member State has been restricted. The creation of the Alert Mechanism was a response to several medical scandals, in which doctors had been able to move to another Member State to continue working after they had been banned from practising in their home Member State. It was clear that the lack of adequate information exchange between supervisory authorities in the Member States made it easier for doctors to do this. As a result, this could lead to a real risk to patient safety. The new Article 56(a) of the Professional Qualifications Directive requires that ‘[t]he competent authorities of a Member State shall inform the competent authorities of all other Member States about a professional whose pursuit on the territory of that Member State of the following professional activities in their entirety or parts thereof has been restricted or prohibited, even temporarily, by national authorities or courts’.

The improved exchange of information between national supervisory authorities under the Alert Mechanism established by Directive 2013/55/EU has resulted in a higher number of disciplinary proceedings brought against doctors who exercised their free movement rights.Footnote ³⁷ The public supervisory authorities of the Member States must inform other Member States if restrictions have been placed on a doctor's ability to practise, or if a doctor has been suspended from practising or struck off the medical register. Although the effect of the exchange of information is not regulated by EU law, the exchange of information leads to more intense dialogues between the Member States on how professional discipline can serve to protect the quality of care provided by doctors and guarantee patient safety.Footnote ³⁸ As such, it has also improved the accountability of doctors who work in a transnational context.

A. The Period of 1981–1995

Dr Broekmeulen was a Dutch national who had trained as a doctor in Belgium. After having completed his studies in Belgium, he was authorised to practise medicine in the Netherlands. However, when he applied to be registered as a general practitioner in the Netherlands, his application was rejected on the ground that he had not completed an additional one year of training as a general practitioner.Footnote ⁵⁶ A similar requirement was imposed on Dutch doctors who had obtained the qualification of basic doctor in the Netherlands. However, with his Belgian qualification, he did not have to undertake any additional training before he could work as a general practitioner. On this basis, he argued that the Netherlands could not impose any additional requirements on him—even though he was a Dutch national.Footnote ⁵⁷ The CJEU agreed and held that the Dutch authorities had to recognise the professional qualification obtained by Dr Broekmeulen in Belgium.Footnote ⁵⁸ As a result, he should be allowed to practise as a general practitioner in the Netherlands.

Bertini was a joined case in which several Italian doctors challenged their dismissal by local health authorities. The case before the national court focussed on the contractual relationship between doctors and their employers, the local health authorities. The CJEU noticed that the context of these cases was a professional environment in which a large number of young doctors were looking for work in Italy, and the fact that Italian universities did not restrict access to degrees in medicine in any way—there was no numerus clausus system.Footnote ⁵⁹ The Italian courts asked the CJEU whether Article 3(c) of the Treaty of the European Economic Community (‘EEC’) and Article 57(3) EEC required that Member States adopted a numerus clauses system to limit admission to the degree of medicine at Italian universities. The CJEU provided a short and clear answer: ‘no provision of Community law requires the Member States to limit the number of students admitted to medical faculties by introducing a numerus clausus system’.Footnote ⁶⁰

Dr Gül was a Cypriot national, married to a British national, who was resident in Germany. He had trained as a doctor in Turkey. He was allowed to register as a doctor in Germany on a temporary basis to be able to train as a specialist in anaesthetics. This registration was conditional on Dr Gül returning to his home country—or another developing country— after the completion of his training.Footnote ⁶¹ However, after he had completed his training, he applied for permanent authorisation to practise medicine in Germany. In doing so, he relied on the fact that his wife was working as a hairdresser in Germany, and that their children were British nationals residing in Germany.Footnote ⁶² The German authorities rejected his application, because he was not a national of a Member State. The maximum amount of training he was allowed to do in Germany was four years. As a result, he was required to return to his home country. The CJEU relied on Regulation 1612/68 to establish that Dr Gül had a right of residence in Germany based on his British wife's right, and that this right should include his ability to access the medical profession under the same conditions as German nationals.Footnote ⁶³

Mr Haim was an Italian national who had qualified as a dentist in Turkey. He practised as self-employed dentist in Germany. Later, his Turkish diploma was recognised in Belgium as equivalent to the Belgian qualification for dentists. He then started to work in Belgium in the public healthcare system. In 1988, Mr Haim applied to the Association of German Dentists be registered as a dentist under the German social security system. His application was refused because he had not completed a training period of at least two years. The Association argued that Mr Haim's Turkish qualification could not be recognised, because it had been obtained in a non-Member State.Footnote ⁶⁴ It was not sufficient for the Belgian authorities to have recognised his qualifications as equivalent. Mr Haim brought two cases against the Association.Footnote ⁶⁵ The first one focussed on the substantive issue: was the refusal of the German authorities a breach of Mr Haim's right to freely establish himself in Germany under Article 49 TFEU? The CJEU found that the Association was not required to recognise Mr Haim's Turkish qualification solely on the basis that the Belgian authorities had found the qualification to be equivalent to the Belgian qualification.Footnote ⁶⁶ However, the CJEU also held that, because Belgium had recognised Mr Haim's qualification as equivalent, the German Association was under an obligation to carry out a substantive assessment to establish to what extent Mr Haim had already acquired the necessary expertise as a dentist.Footnote ⁶⁷ It could not automatically reject his application.

Van Poucke is one of the few cases which did not involve the recognition of professional qualifications. Dr Van Poucke was a Belgian national who had two jobs: he was employed as a military doctor in Belgium and he worked as a self-employed doctor in the Netherlands. Because he was self-employed in the Netherlands, he was asked to pay contributions to the Belgian fund for the social insurance of self-employed persons.Footnote ⁶⁸ Dr Van Poucke argued that this requirement was a restriction of his free movement rights—in particular, of his rights under Regulation 1408/71.Footnote ⁶⁹ The CJEU held that, because he was self-employed in the Netherlands, the Belgian authorities were entitled to treat Dr Van Poucke as self-employed under the Regulation.Footnote ⁷⁰

A similar kind of scenario could be observed in Vougioukas. Dr Vougioukas was a Greek national who had worked as a doctor in German hospitals for a period of five years. When Dr Vougioukas was about to retire, he applied to the Greek social security institution for the five-year period that he practised in Germany to be taken into account in calculating his pension entitlements in Greece. If this period could not be taken into account, Dr Vougioukas was not yet entitled to a retirement pension. His application was rejected on the basis that the period of work in Germany did not fall within one of the categories of service that could be taken into account in calculating Dr Vougioukas’ pension entitlements.Footnote ⁷¹ The CJEU held that refusal to take into account his German work experience this constituted a breach of his rights under Article 45 TFEU, if equivalent experience obtained in Greece was taken into account in calculating his pension entitlements.Footnote ⁷²

B. The Period of 1998–2000

Dr Schöning-Kougebetopoulou was a Greek national who was working in Hamburg as a specialist doctor in the public healthcare system. When she applied for a higher salary group based on her previous experience as a specialist doctor, the German authorities rejected her application and refused to take her six-year experience as a specialist doctor in Greece into account in calculating the number of years she had worked as a medical specialist.Footnote ⁷³ This was despite the fact that her experience in Greece was in the same specialty and that her work was comparable to the work in Germany. Dr Schöning-Kougebetopoulou argued that this rejection constituted indirect discrimination on the ground of nationality and breached Article 45 TFEU.Footnote ⁷⁴ The CJEU agreed and held that Germany could not rely on the public service exception in Article 45(4) TFEU.Footnote ⁷⁵

Garofalo was a joined case brought by a number of Italian doctors against the Italian Ministry of Health. As such, the case did not concern any cross-border movement—it was a group of Italian doctors who relied on Directive 86/457/EEC against the Italian State.Footnote ⁷⁶ The case concerned the recognition of qualifications of general practitioners. Doctors with basic training were allowed to practise as a general practitioner in certain Member States. In other Member States, they would first have to complete an additional period of training as a general practitioner. From January 1995, amendments to the Directive meant that general practitioners always had to complete an additional period of training.Footnote ⁷⁷ However, at the same time, the Directive recognised that certain doctors had already acquired the right to practise as a general practitioner without obtaining an additional qualification. Dr Garofalo and the other claimants were all Italian nationals who were practising as general practitioners in Italy. Furthermore, they had obtained a specific qualification as a general practitioner in Italy. They brought a case against the Ministry of Health to prevent a number of other doctors without an additional qualification in general medicine from being registered as general practitioners in Italy.Footnote ⁷⁸ As such, the case focussed on the interpretation and the scope of the concept of acquired rights under Directive 86/457/EEC. The CJEU held that Italy had to recognise the acquired rights of doctors without an additional period of training who had been allowed to practise as a general practitioner before January 1995.Footnote ⁷⁹

In Fédération Belge, the Belgian Federation of Doctors’ Associations brought a case against the Flemish Government about the implementation of Directive 93/16/EEC on the free movement of doctors and the mutual recognition of their diplomas. Again, the case was about general practitioners. Directive 93/16/EEC required general practitioners to complete six years of training as a basic doctor and two years of training as a general practitioner. The Flemish Government had implemented this in such a way that students studying for the basic medicine degree could already complete one year of training as a general practitioner during their training as a basic doctor.Footnote ⁸⁰ This resulted in discrimination between doctors trained in the Flemish region and doctors trained in other regions. The Federation argued that the way in which the Flemish Government had implemented the Directive was in breach of Directive 93/16/EEC.Footnote ⁸¹ However, the CJEU disagreed and held that it was open to Member States to integrate the training as a general practitioner into the training as a basic doctor—it was not necessary that trainees had already qualified as a basic doctor before they started their training.Footnote ⁸²

Carbonari was another Italian case in which a group of Italian doctors brought proceedings against the Italian Ministry of Health. The claimants had all completed their training as a basic doctor in Italy and were registered as training to be specialists in different specialties with the University of Bologna. The doctors claimed that, based on Directive 82/76/EEC, they were entitled to appropriate remuneration during their specialist training.Footnote ⁸³ They did not receive any remuneration even though they were in full-time training. In this case, the key issue was whether the doctors’ entitlement to appropriate remuneration was a directly effective right which could be relied on in proceedings before the Italian national courts. The issues were almost identical in Gozza. This case was brought by a number of graduates in medicine and surgery from the University of Padua. They also applied to receive retrospective remuneration for their training as a surgeon. The case focussed on the relevant criteria in determining the appropriate remuneration for doctors who had been in part-time rather than full-time training.Footnote ⁸⁴ Another issue was which specialties were covered by the obligation to provide remuneration.Footnote ⁸⁵ In both cases, the CJEU held that the provisions of the Directive were sufficiently clear and precise. However, they were not unconditional, because the Directive did not regulate which national authority was made responsible to provide the remuneration. Therefore, the provisions were not directly effective. However, the duty of consistent interpretation meant that national courts were under an obligation to give effect to the provisions of the Directive on the basis of the national legislation.Footnote ⁸⁶

Dr Hocsman was an Argentine national who trained as a doctor in Buenos Aires. The Spanish authorities recognised his Argentinian qualification as equivalent to a Spanish medical qualification. In 1982, he completed his training as a urologist in Spain. Four years later, after he had obtained Spanish nationality, he was formally allowed to practise as a urologist in Spain. In 1990, Dr Hocsman moved to France to practise in that country. He applied to be registered as a doctor in France. However, the French authorities rejected his application on the ground that he had obtained his basic qualification in a non-Member State.Footnote ⁸⁷ As such, the factual scenario was essentially similar to Haim, and the CJEU held that the French authorities were required to make a substantive comparison of the Argentinian and French qualifications.Footnote ⁸⁸ Dr Hocsman's application could not be rejected without such a substantive assessment.

C. The Period of 2000–2004

Dr Erpelding was an Austrian national who had trained as a doctor in Austria. He subsequently completed his specialisation in internal medicine and was authorised to practise as a specialist in internal medicine in Austria. In 1991, he applied for authorisation to work as a specialist in internal medicine in Luxembourg, which was duly granted.Footnote ⁸⁹ In 1993, the Austrian authorities granted Dr Erpelding the title of specialist in internal medicine with a specialisation in cardiology. The Luxembourg authorities allowed him to use this title in Luxembourg. However, when Dr Erpelding applied to the Luxembourg authorities in 1997 to be allowed to use the title of cardiologist, because he no longer worked in general internal medicine, his application was refused.Footnote ⁹⁰ This was because the speciality of cardiology was not recognised as a separate specialty in Austria. Dr Erpelding submitted that the Austrian qualification was essentially similar to the qualification of cardiologist in Luxembourg and that his qualification should be recognised on that basis.Footnote ⁹¹ The Court disagreed: mutual recognition was only required for specialties recognised by the Directive, and Dr Erpelding did not possess an Austrian qualification as a cardiologist.Footnote ⁹²

Dr Danner was a German and Finnish national. He worked in Germany as a doctor until 1977, when he established himself as a doctor in Finland. While resident in Finland, he continued to pay contributions to two German pension insurance schemes for doctors in Germany. One of these schemes was in fact compulsory for all doctors working in the area of Berlin. Dr Danner continued to pay contributions to this scheme because he had to do so if he wanted to receive a pension in case of invalidity.Footnote ⁹³ Moreover, by continuing to pay contributions he increased his pension entitlements. The case before the CJEU focussed on the extent to which Dr Danner should be allowed to deduct the contributions to pension schemes in Germany from his taxable income in Finland.Footnote ⁹⁴

Dr Tennah-Durez was an Algerian national who qualified as a doctor in Algeria. After she had obtained Belgian nationality, she completed the final year of training as a basic doctor in Belgium. The Belgian authorities recognised the six years of training Dr Tennah-Durez had completed in Algeria. After two additional years of training as a general practitioner, she was authorised to work as a general practitioner in Belgium. When she registered to practise as a general practitioner in France on a permanent basis, the French authorities asked for additional information from the Belgian authorities.Footnote ⁹⁵ The Belgian authorities replied that the majority of Dr Tennah-Durez’ training had been undertaken in a non-Member State. As a result, she had not received the majority of her training in a Member State. Dr Tennah-Durez was subsequently removed from the French register of general practitioners. Her appeal was upheld at first instance, because the French tribunal found that Dr Tennah-Durez had completed the required number of hours of training.Footnote ⁹⁶ However, this decision was reversed on appeal. The key issue before the CJEU was to what extent the training which Dr Tennah-Durez had received in Algeria should be taken into account in assessing her request for recognition of her Belgian qualification in France. The CJEU held that France had to accept Dr Tennah-Durez's Belgian qualification. Because the qualification had been provided by a Member State, the ‘location’ of some of the training was no longer relevant and did not provide a ground to the French authorities to refusal recognition of the qualification.Footnote ⁹⁷

Dr Klett was a German national who completed his training as a doctor in Germany. He also obtained a PhD in Medicine from the University of Hamburg. He was authorised to practise as a basic doctor in Germany on a self-employed basis. In 1995, about twenty years after completing his training as a doctor, Dr Klett applied for admission to a specialised course in dentistry at the University of Graz in Austria. After several legal proceedings, the Austrian authorities rejected his application on the ground that he did not have a degree in general medicine conferred by an Austrian university.Footnote ⁹⁸ Moreover, the authorities argued that a qualification in medicine did not give any rights to doctors in Member States ‘where there was special training for dentists and where dentistry is an independent profession’.Footnote ⁹⁹ The CJEU agreed and held that Dr Klett did not have a right to be admitted to a dentistry course in Austria when his original qualification was not provided by Austria.Footnote ¹⁰⁰

Fascicolo was another Italian case about general practitioners. Under the Italian healthcare system, in deciding whether and which doctors were authorised to practise, the authorities classified and ranked doctors using a points-based system.Footnote ¹⁰¹ This was necessary because the Italian system relied on quota for doctors—only a certain number of doctors was allowed to practise in a particular region. Doctors with specialist training in general medicine were awarded 12 points and 0.2 points for each month of practice. If there was a particular shortage of doctors, doctors without the specialist training in general medicine could apply to be on the register, and they would be awarded the same number of points, if they had obtained equivalent previous experience. In the region of Puglia, because there was a shortage of doctors, the authorities allowed doctors without specialist training to practise as a general practitioner. However, it refused to award them the 12 points.Footnote ¹⁰² This decision was overturned after legal proceedings that ultimately reached the Italian Council of State. However, the authorities in Puglia still refused to award points for the years before the decision of the Council of State. Similarly to Carbonari and Gozza, the case focussed on the concept of acquired rights. The CJEU held that the points-based system was compatible with Directive 93/16/EC.Footnote ¹⁰³

D. The Period of 2008–2013

Dr Mayeur was a Peruvian national who had trained as a doctor in Peru. She qualified as a basic doctor in 2002 and started training as a cardiac surgeon in France a few months later. In 2005, she married a French national, and in 2006 her Peruvian qualification was recognised as equivalent by the authorities in Spain.Footnote ¹⁰⁴ After this process of recognition, Dr Mayeur applied for authorisation to practise medicine in France. This request for authorisation was refused by the French authorities. Dr Mayeur appealed that decision and argued that, following the judgment in Hocsman, she had a right under the Citizens’ Rights Directive for her Peruvian qualifications to be taken into account in the assessment by the French authorities.Footnote ¹⁰⁵ However. the CJEU held that because Dr Mayeur's husband had not moved between Member States, it was not possible for her to rely on the Citizens’ Rights Directive.Footnote ¹⁰⁶

Iaia was another Italian case following from Carbonari and Gozza. In this case, a group of doctors who had trained as a specialist doctor at the University of Pisa brought a claim against the Italian State to recover the amount of remuneration which they should have received during their training. The case did not focus on the substantive rights under Directive 82/76, but rather focussed on the remedial aspects. Italian law provided that there was a five-year limitation period for this kind of claim.Footnote ¹⁰⁷ The question for the CJEU was whether such a limitation period was compatible with the principles of effectiveness and equivalence under EU law. It found that a reasonable limitation period was permitted under EU law. This was the case even if the Member State had not implemented a directive correctly—except when the Member State was responsible for the delay in bringing the action.Footnote ¹⁰⁸

Dr Konstantinides was a Greek national who qualified as a doctor in Athens in 1981. After having worked in the Athens University Hospital for a number of years, he established his own Andrology Institute Athens. He was registered to practise as a doctor in Greece. Between 2006 and 2010, Dr Konstantinides visited Germany for one or two days per month to carry out highly specialised surgical operations in a private clinic in Darmstadt.Footnote ¹⁰⁹ All other organisational and clinical aspects were organised by the clinic. In August 2007, after a successful operation, one of Dr Konstantinides’ patients complained about the amount of fees he had been charged.Footnote ¹¹⁰ This resulted in the regional professional association bringing disciplinary proceedings against Dr Konstantinides in Germany. He was charged with two counts of professional misconduct. First, it was alleged that he had charged fees in breach of the applicable professional rules, because they were excessive.Footnote ¹¹¹ Dr Konstantinides claimed that the fees had been agreed with the patient. Second, the professional association accused him of engaging in unprofessional advertising, because he had used the terms ‘German Institute’ and ‘European Institute’ on his website.Footnote ¹¹² This created the impression of a permanent hospital infrastructure, even though he only provided services on a temporary basis.

Dr Konstantinides argued that, because he was a temporary service provider in Germany, under Article 5(3) of the Professional Qualifications Directive, no disciplinary proceedings could be brought against him in Germany.Footnote ¹¹³ However, the CJEU held that Article 5(3) did not stop Dr Konstantinides from being subject to professional discipline in Germany. The application of the German disciplinary rules still had to be assessed under Article 56 TFEU. The CJEU provided a strong indication that the German rules on professional advertising could be justified on the basis of the promotion of public health and consumer protection.Footnote ¹¹⁴ The CJEU also found that the German rules on the appropriate fees lacked flexibility, which meant that they could deter doctors from other Member States from exercising their free movement rights (because it was not clear which tariffs could lawfully be adopted under the German rules).Footnote ¹¹⁵ It was for the national court to determine whether there was a restriction of Article 56 TFEU, and whether this restriction could be justified.

In Conseil national de l'ordre des médecins, the National Council of the Association of Doctors brought proceedings against the French Ministry of Education for the annulment of an order which created a common (joined) training course for postgraduate students in medicine and dentistry. The outcome of the course would be the award of a diploma in ‘specialised oral surgery’. The National Council argued that this course was incompatible with the provisions of the Professional Qualifications Directive. This argument was based on the ground that the new course introduced courses within the area of specialist medicine which would now become accessible to postgraduate students in dentistry.Footnote ¹¹⁶ As a result, the course would lead to the creation of a new profession that was common to doctors and dentists. The CJEU held that the creation of a specialist training course was not prohibited so long as the course did not make it possible for practitioners without basic training as a doctor to practise as a doctor, or for practitioners without basic training as a dentist to practise as a dentist.Footnote ¹¹⁷

E. The Period of 2017–2022

Mr Vanderborght was a Belgian dentist who worked in private practice in Belgium. Criminal proceedings were brought against him after a complaint by the Flemish Association of Dentists. It was alleged that, for a period of more than ten years, he had advertised his dental services in breach of the relevant Belgian legislation.Footnote ¹¹⁸ He had created a website to inform patients of the treatments provided in his clinic. On this website, he showed photos of the results of his treatments. This kind of information could not be provided under the Belgian legislation. Mr Vanderborght had also posted several advertisements in local newspapers.Footnote ¹¹⁹ His defence to the criminal proceedings was that the complete prohibition on advertising constituted a restriction of Articles 49 and 56 TFEU. Even though there was no actual cross-border element, the CJEU found that Mr Vanderborght could provide services to non-nationals.Footnote ¹²⁰ On that basis, the case came within the scope of Article 56 TFEU. The CJEU held that the complete prohibition did not comply with the proportionality test, because less restrictive measures were available—it was not necessary to impose an absolute prohibition on advertising, which was enforced through criminal proceedings.Footnote ¹²¹

Simma Federspiel is the most recent case in the series of Italian cases focussing on the remuneration of doctors during their specialist training. Dr Simma Federspiel was an Italian national who had trained as a medical specialist in neurology and psychiatry at the University of Innsbruck from 1992 to 2000. During this eight-year period, she had received a bursary from the Province of Bolzano, in which she was also resident. After the completion of her training, she moved to Austria, where she practised as a neurologist and psychiatrist. According to the CJEU, it was not clear whether she was working in private practice in Austria.Footnote ¹²² One of the conditions for receiving the bursary was that Dr Simma Federspiel would work for the public health services of the Province of Bolzano for at least five years over a ten-year period, within ten years of the date of qualifying for the specialisation.Footnote ¹²³ If she did not do this, she would have to repay 70% of the bursary together with interest. Dr Simma Federspiel had moved to Austria immediately after the completion of her training and had never worked in the Province of Bolzano. As a result, the Province asked her to repay 70% of the amount of the bursary received, which, together with interest, amounted to almost EUR 120,000.Footnote ¹²⁴ Dr Simma Federspiel argued that the Italian rules on repayment of the bursary constituted a restriction of her rights under Article 45 TFEU.Footnote ¹²⁵ Because it was not clear whether Dr Simma Federspiel was employed or self-employed, the CJEU decided to assess her case under Article 45 TFEU and Article 49 TFEU. There was no doubt that the Italian rules constituted a restriction on free movement. The key question, which the CJEU left to the national court to answer, was whether the Italian rules complied with the proportionality test.Footnote ¹²⁶

Dr Preindl was an Austrian national who had qualified as a dentist in Austria. His Austrian qualification was recognised as equivalent to the Italian dentist qualification by the Italian Ministry of Health. About a year later, he submitted his Austrian degree in ‘Doktor der Gesamten Heilkunde’ to be recognised as a surgeon in Italy. The Austrian professional association had certified this qualification as equivalent to a degree in basic medicine. However, when the Italian Ministry investigated the degree, it discovered that the diploma could be obtained after only 15 months of training.Footnote ¹²⁷ As such, it fell significantly short of the minimum amount of training of six years. However, the Austrian association confirmed that Dr Preindl had studied for the dental and basic doctor qualification at the same time.Footnote ¹²⁸ In Italy, this kind of concurrent training was prohibited. As a result, the Italian Ministry still refused to recognise the qualification. Dr Preindl then brought proceedings in Italy claiming that his Austrian qualification should be recognised as equivalent to the Italian qualification. The CJEU agreed: Member States were not allowed to refuse to recognise qualifications which had been awarded on the competition of partially concurrent training.Footnote ¹²⁹

In Chirurgiens-dentistes de France, the French Association of Dental Surgeons (with a number of other professional associations) brought an action against the French Ministry of Health for the annulment of an order which had sought to implement the amendments made to the Professional Qualifications Directive by Directive 2013/55/EU. The professional associations argued that this order unlawfully included the professions of doctor, dental surgeon, midwife and nurse in the scope of the concept of ‘partial access’ to the profession under the Professional Qualifications Directive.Footnote ¹³⁰ The concept of partial access had been introduced by Directive 2013/55/EU to enable Member States to provide partial access to professionals whose scope of activities was significantly narrower than the scope of activities undertaken by professionals with the same qualification in the host Member State. Partial access would only be allowed if the differences between the professional activity were so significant that the professional would be required to complete the full programme of education and training in the host Member State.Footnote ¹³¹ The French professional associations argued that the professions of doctor (and the other professions represented by the associations) should be excluded from the partial access mechanism under the amended Professional Qualifications Directive. The case turned on the interpretation of the term ‘professionals’ and the distinction between the term ‘professions’ and ‘professionals’ in the Professional Qualifications Directive. The CJEU held that, while professionals (individuals) with the required qualifications enjoyed automatic recognition, the same was not true for the professions in the general sense. This distinction was based on a deliberate choice which had been made in the legislative process leading to the adoption of Directive 2013/55/EU.Footnote ¹³²

Finally, in the case of A, a Finnish national had completed her bachelor's degree in medicine at the University of Edinburgh. Under the UK rules, this qualification meant that A had a restricted right to practise as a doctor in the UK, and she was registered as a ‘provisionally registered doctor with a licence to practise’ in the UK.Footnote ¹³³ This entitled her to work in a postgraduate programme. After having finished her degree in Edinburgh, A returned to Finland and applied for authorisation to work as a doctor in Finland based on her UK qualification. However, A was unable to provide a certificate of experience, which was required in the UK to have the unrestricted right to practise as a doctor. Because she did not have this certificate, the Finnish supervisory agency suggested that she apply for a temporary licence to practice for three years.Footnote ¹³⁴ In those three years, A could then either complete a professional traineeship in Finland in accordance with UK guidelines, so that she would be able to obtain an unrestricted right to practise in the UK (which would subsequently allow her to practise in Finland), or complete special training in general medicine in Finland.

A chose the second option, which did not lead to automatic recognition of her professional qualification under the Professional Qualifications Directive. However, A's problem remained that she had not obtained the full qualification to practise as a basic doctor in UK, and after her training in general medicine the Finnish authorities still refused to recognise this. A brought proceedings before the Finnish Court and claimed that this constituted a restriction of her rights under Articles 45 and 49 TFEU.Footnote ¹³⁵ She argued that, even if she was not entitled to automatic recognition under the Directive, the Finnish authorities still had to make a substantive and individual comparison between the training A had received in the UK and the required training in Finland. In particular, it was disproportionate to refuse to require A to complete three years of additional training in Finland, when the Finnish equivalent only required an additional four months of extra training to obtain the right to practise.Footnote ¹³⁶ The CJEU held that Articles 45 and 49 TFEU required that A's expertise was assessed on an individual basis. It was not proportionate to provide that all holders of a qualification obtained in another Member State had to choose between the same options—the potential outcomes should be based on an individual and detailed assessment of the circumstances of A's case.Footnote ¹³⁷