Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

In the request for a preliminary ruling which we have to deal with today we are essentially required to define the substance and scope of Article 2 of Council Directive 75/362/EEC of 16 June 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 (Official Journal L 167 of 30. 6. 1975, p. 1). Article 2 provides as follows:

On 30 June 1979 as a result of his studies in the Faculty of Medicine at the Catholic University of Louvain, Belgium, the applicant in the main proceedings, Dr Broekmeulen, a Netherlands national, obtained the Wettelijk Diploma van Doctor in de Genees-, Heel- en Verloskunde (diploma of doctor of medicine, surgery and obstetrics) referred to in Article 3 (b) of the above-mentioned directive. The diploma entitles him to go into general practice in Belgium.

Under the provisions of Article 2 of the Netherlands Law regulating the practice of medicine (Wet Regelende de Uitoefening der Geneeskunst), the Secretary of State for Health and the Environment granted him authorization to practise medicine in the Netherlands by a decision dated 18 September 1979. He took his doctor's oath on 19 October 1979.

By a letter of 14 November 1979 Dr Broekmeulen applied for enrolment on the register of recognized general practitioners. In this connection it ought to be pointed out that in the Netherlands the maintenance of that register, the conditions for registration and the training of general practitioners (huisarts) are governed by the statutes, internal rules and orders made thereunder of the Royal Netherlands Society for the Promotion of Medicine (Koninklijke Nederlandsche Maatschappij tot Bevordering der Geneeskunst, hereinafter referred to as the Society), which is a private association.

If a doctor is not enrolled on the register it is practically impossible for him to establish himself in the Netherlands as a general practitioner since a Royal Decree of 4 January 1966 (Verstrekkingenbesluit, Staatsblad No 3) governing benefits for patients covered by the social security scheme, as amended by the Royal Decree of 15 August 1973 (Staatsblad No 428), defines the term general practitioner as a doctor enrolled on the register of general practitioners recognized by the Royal Netherlands Society for the Promotion of Medicine. There is thus no possibility for a doctor who is not so registered to carry on a practice with patients covered by the social security scheme. Furthermore, the carrying-on of a private practice has been made extremely difficult, not to say impossible, for all general practitioners, whether they are members of the Society or not, since many private insurance companies define the term general practitioner in their policies in the same way.

The Huisarts Registratie Commissie (General Practitioners Registration Committee, hereinafter referred to as the Registration Committee) is responsible for dealing with applications for registration. By a letter of 18 March 1980 the Registration Committee refused Dr Broekmeulen's application for registration after the Commissie van Uitvoering Huisartsenerkenning (General Practitioners Recognition Committee), to which the application had been submitted, had delivered an unfavourable opinion.

The refusal was based on the ground that enrolment on the register was not possible under Order No 1-1977 of the College voor Huisartsgeneeskunde (Council for General Medicine), so long as the applicant had not undergone a year's training as a general practitioner (huisarts) as laid down by Order No 1-1974 of the Council for General Medicine.

Order No 1-1977, which was still in force at that time, contained the following provisions in the preamble and in Article 1 :

By a letter of 10 June 1980 Dr Broekmeulen appealed within the specified period against the rejection of his application by the Registration Committee to the Commissie van Beroep Huisartsgeneeskunde (Appeals Committee for General Medicine, hereinafter referred to as the Appeals Committee), which under the rules of the Society has juridisction to hear such appeals.

Placing reliance on the preamble to the aforesaid order, he argued that Article 1 thereof also applies to Netherlands nationals who have obtained a diploma of doctor of medicine in a Member State of the European Community other than the Netherlands. In the event of the Appeals Committee's rejecting that argument, Dr Broekmeulen argued in the alternative that the order was not applicable to him on account of an infringement of Directives 75/362/EEC and 75/363/EEC. His right to demand enrolment on the register of recognized general practitioners flowed directly from those directives, notwithstanding the fact that he had not undergone a year's training in the Netherlands in general medicine. Finally, he submitted

that regard should be had to Article 1119 of the internal rules of the Society, whereby a doctor who has not undergone the training in general medicine may nevertheless be enrolled on the register if, in the opinion of the Registration Committee, ne possesses particular theoretical and practical qualifications. Dr Broekmeulen considered that he had satisfied those requirements.

The Appeals Committee, sharing the view of the defendant Registration Committee that the registration applied for could not be granted under Article 1119 and that the interpretation of Article 1 of the order advocated by the applicant was incorrect, stayed the proceedings by an interlocutory decision of 21 October 1980 and referred the following question to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

I — Admissibility

Before I express an opinion on this question, a preliminary point concerning admissibility must be discussed, namely whether the Appeals Committee is entitled to refer a case to the Court under Article 177 of the EEC Treaty.

The Appeals Committee considers that within the domestic context it is the highest judicial body called upon to decide inter alia who may be enrolled on the register of recognized general practitioners in the Netherlands; it therefore regards itself as bound under Article 177 of the EEC Treaty to refer to the Court questions concerning the interpretation of Community law which are relevant to its decision. Likewise, the parties in the main proceedings, as well as the Netherlands Government and the Commission, which have both submitted their views on the case, argue, albeit on different grounds, that the Appeals Committee should be regarded as a court or tribunal entitled to request a preliminary ruling under Article 177 of the EEC Treaty.

The view put forward by the body which submitted the reference and by the parties to the proceedings must, I think, be accepted, having regard to the spirit and intendment of Article 177 of the EEC Treaty, irrespective of whether that body is or is not a court or tribunal under the provisions of the Netherlands Constitution.

In examining the question whether a decision-making body is to be regarded as a court or tribunal within the meaning of Article 177 of the EEC Treaty, the general rule must prevail that the concepts of Community law are to be classified within the independent legal order of the Communities and thus fall to be interpreted according to the general scheme, requirements and objectives of the Community. Only where there is an express reference to national law or it is clear from the circumstances of the case that national law applies may this general rule be departed from. In its decisions the Court has consistently affirmed that the purpose of Article 177 is to ensure the uniform interpretation of Community law in all the Member States by means of cooperation between the Court of Justice and the courts of the Member States. Therefore the term used in Article 177, Gericht eines Mitgliedstaats (in the French version of the Treaties juridiction d'un des États Membres, in the Italian version juridizione di uno degli Stati Membri, in the English version any court or tribunal of a Member State, in the Dutch version rechterliche instantie van een der Lid-Staten), is mainly intended to preclude applications to the Court under that provision from, on the one hand, courts of non-member States or international courts and, on the other hand, the parties to proceedings pending before a national court, as well as Member States and their authorities or institutions of the Communities.

This does not mean to say that the aforesaid term constitutes a reference to national law in the sense that only those decision-making bodies recognized as courts or tribunals by the law of the Member State may request a preliminary ruling. In this connection it should not be overlooked that the system of courts and administration in the Member States is largely based on common principles although affected by historical accident and influenced by differing legal concepts, as Mr Advocate General Gand stressed in his Opinion in Case 61/65 G. Vaassen (née Göbbels) ν Management of the Beambtenfonds voor het Mijnbedrijf [1966] ECR 280. Thus, in order to ensure the uniform interpretation and application of Community law, the essential characteristics of a court or tribunal within the meaning of Article 177 of the EEC Treaty must be given a uniform definition. For the purposes of such a definition it is, however, merely necessary to establish whether, in accordance with the general principles governing the administration of justice in the Member States, those authorities referring matters to the Court possess the characteristics of bodies which have to apply legal rules in the adjudication of disputes.

If on the other hand the term in question were to be construed as a reference to national law, Member States would have it in their power to take away from certain decision-making bodies which have to apply Community law the right, and in some cases, the obligation to request a preliminary ruling, by making provision to that effect within their system of administration of justice. This would lead eventually to the fragmentation of Community law, which is precisely what the procedure under Article 177 is designed to avoid. Thus the law of the Member States can be relevant only in so far as that law is able to determine whether the minimum characteristics required by Community law are present in a given case.

In this context the question — not, I think, finally resolved in these proceedings — as to whether the Appeals Committee is a tribunal of last instance or whether the persons concerned may also appeal to the ordinary courts of law against an adverse decision of the Registration Committee may remain open. Even if such a possibility of judicial review exists, that does not mean that the decision-making body subject to that review is not itself a court; it merely means that that body is not a court of last instance having a duty to submit a reference, a question which does not need to be decided in this case.

As regards determining the general minimum characteristics which must be present so that the definition of a court or tribunal within the meaning of Article 177 is satisfied, the judgment of the Court in Case 61/65 G. Vaassen (née Göbbels) ν Management of the Beambtenfonds voor het Mijnbedrijf [1966] ECR 261 is instructive; there too the Court had to decide whether the requesting authority was in the nature of a court. In that case the Court ruled that the Netherlands Scheidsgerecht van het Beambtenfonds voor het Mijnbedrijf (Arbitration Tribunal of the Fund for Non-Manual Workers employed in the Mining Industry) was indeed in the nature of a court for the following reasons which I should like briefly to call to mind:

Those characteristics, from the totality of which the Court inferred that the Scheidsgerecht was empowered to submit a reference, are also to be found in the case of the Appeals Committee which submitted the present reference. Admittedly, its composition, function and procedure all derive from the statutes and internal rules of the Society, which is a private association, and from the orders issued thereunder. Of decisive importance, however, is the fact that under Article 26 (2) of the statutes, upon which the internal rules are based, those provisions of the internal rules which relate to the recognition and registration of general practitioners may not be changed without the approval of the minister responsible for higher education and health, so that to that extent there is government supervision over the composition, function and procedure of the Appeals Committee. Another factor to be borne in mind in this context is that as a result of the Royal Decree which I have already mentioned (Verstrekkingenbesluit) the payment of benefits to the insured person and the payment of the doctor's fees are subject to the doctor's being enrolled on the register of recognized general practitioners.

Pursuant to the internal rules, the aforesaid ministers also have to appoint two members of the Appeals Committee and the chairman thereof, for which post a high-ranking judge is preferred. The independence of the Appeals Committee ist also guaranteed to some extent by the provisions governing the composition of the rest of the Committee, whereby three members must be appointed by the Netherlands medical faculties and three members by the Society itself.

Finally, pursant to the internal rules, the Appeals Committee is permanent body called upon to determine disputes brought before it which are defined in general terms in those rules.

The procedure to be observed before the Appeals Committee is also laid down, albeit in summary form, in those rules, which provide inter alia that the parties to a dispute must at their request be heard and that the applicant may be represented by a lawyer in an application against the Registration Committee.

Furthermore, the Appeals Committee adjudicates upon contested decisions concerning the registration of general practitioners on the basis of the provisions contained in the internal rules and on the basis of requirements laid down by order; thus it does not operate on general equitable principles ex aequo et bono.

It must also be borne in mind, however, that those rules, which are subject to government control, and on the basis of which the Appeals Committee hears cases brought before it, are binding not only on members of the Society — 93% of general practitioners — but are of general application. That is a result of the status which the register of recognized general practitioners has acquired as a result of the Verstrekkingenbesluit [Decree concerning benefits].

Thus on the basis of those characteristics it may be said that the Appeals Committee is to be regarded as a permanent tribunal endowed with powers of a public nature which adjudicates upon disputes according to legal rules after a proper procedure in which the parties are given a hearing. In agreement with all the parties to these proceedings, I consider that to be sufficient to regard the Appeals Committee as a court or tribunal empowered to submit a reference to the Court of Justice under Article 177.

That conviction is strengthened when it is borne in mind that, de facto if not de jure, the Appeals Committee takes the place of the ordinary courts of law and is, as we have heard, de facto the court of last instance. The purpose of Article 177 of the EEC Treaty, namely to ensure that Community law produces the same effects in all Member States, would be defeated if the right to submit a reference were denied in such a case.

II — The substance of the case

The Appeals Committee has to decide the question — raised in the alternative by the applicant in the main proceedings — whether Article 1 of Order No 1-1977 contravenes Council Directives 75/362/EEC and 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (Official Journal L 167 of 30. 6. 1975, p. 14). According to the Appeals Committee, it is clear from that provision that only nationals of a Member State other than the Netherlands who have obtained a diploma of doctor of medicine in a Member State other than the Netherlands may, on application, be enrolled on the register of recognized general practitioners, without having to undergo in the Netherlands the one-year training in general medicine, provided also that they submit to the Registration Committee the legally required evidence that they have received authorization, under Article 2 of the Netherlands law relating to the practice of medicine, to practise in the Netherlands. On that view, a Netherlands national who has obtained a diploma of doctor of medicine in another Member State entitling him to enter general practice in that Member State must be debarred from practising in the Netherlands unless he has himself enrolled on the above-mentioned register, in which case he must satisfy the requirement of a one-year period of training. With a view to deciding whether that provision as interpreted above is compatible with Community law, the Appeals Committee has referred to the Court a question concerning the interpretation of the aforementioned directives, a question which gives rise to a number of subsidiary questions.

III — In conclusion, I propose, therefore, that the following reply should be given to the question submitted:

The effect of Article 2 of Council Directive 75/362/EEC of 16 June 1975 is that a Netherlands national who has obtained in Belgium the Wettelijk Diploma van Doctor in de Genees-, Heel- en Verloskunde [diploma of doctor of medicine, surgery and obstetrics], on being authorized to practise as a doctor in the Netherlands, is entitled to be enrolled on the register of recognized general practitioners kept by the Koninklijke Nederlandsche Maatschappij tot Bevordering der Geneeskunst [Royal Netherlands Society for the Promotion of Medicine], without previously having undergone a period of training in the Netherlands as huisarts.

1 Translated from the German.