Ipsofactoj.com: International Cases [2003] Part 12 Case 5 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Dr. Lambiris

- vs -

Specialist Training Authority of the Medical Royal Colleges

LORD JUSTICE ALDOUS

LORD JUSTICE BUXTON

LORD JUSTICE RIX

8 MAY 2003


Judgment

Lord Justice Buxton

INTRODUCTION

  1. In this appeal it was thought necessary to present the Court with 97 pages of skeleton argument; over 800 pages of documents; and the complete transcripts of 32 cases, none of which had been handled in the way directed in, nor bore the certification required by paragraph 8.3 of, the Lord Chief Justice’s Practice Direction (Citation of Authorities) [2001] 1 WLR 1001. That burden was largely occasioned by a reluctance to apply well-worn areas of English administrative law and European Community jurisprudence to an unusual, but in itself straightforward, set of facts. The applicant, Dr Lambiris, complains of a failure by the relevant UK authorities to accord him recognition as a medical specialist despite the fact that he is so recognised in Greece. It will be convenient first to set out the relevant facts, whilst in so doing indicating the basic legal structure, both domestic and in Community terms, that is in issue; then set out the principles of Community law that govern the appeal; and then against that background address the criticisms that are made of the decisions made by the United Kingdom medical authorities in Dr Lambiris’s case.

    THE FACTS

  2. Dr Lambiris enjoys both Greek and British nationality, and is a registered medical practitioner in both jurisdictions. In December 1993 he entered on the first stage of the official training programme of the Greek Ministry of Health for the speciality of Dermatology-Venereology. In early 1995 he came to the United Kingdom, with the authorisation of the Ministry, with a view to continuing that specialist training. He has worked as a doctor in the United Kingdom ever since. The nature of his work and of the posts that he has held are both matters of controversy in this case, to which I shall have to return. He has, however, been recognised by the Greek authorities, on the basis of his work in the United Kingdom, as a specialist in Dermatology-Venereology. Dermatology-Venereology is not a speciality that is recognised in the United Kingdom. Its nearest equivalent is the speciality of Dermatology. Dr Lambiris accordingly wishes to be recognised in the United Kingdom as a specialist in Dermatology; or, as very much a second best in United Kingdom practice terms, in Dermatology-Venereology.

  3. The arrangements for recognition of medical specialist status in the United Kingdom are governed by the European Specialist Medical Qualifications Order 1995 [the ESMQO]. The active body that administers the ESMQO is the Respondent to this appeal, the Specialist Training Authority of the medical Royal Colleges [the STA]. Decisions of the STA are subject to rehearing before an Appeal Panel of the STA; the complaint in this case is in relation to a decision of that Appeal Panel, and references to the STA hereafter are, in the main, references to that Panel.

  4. The ESMQO first addresses what may for identification only be called domestic recognition of the completion of specialist medical training, by the award of a certificate of completion of specialist training [CCST]. CCSTs are only granted in relation to the recognised specialties that are listed in Schedule 2 to the Order. Dermatology is so listed; Dermatology-Venereology is not. Article 7 of the Order sets out the requirements of the specialist medical training that is intended to lead to the award of a CCST. The training must, amongst other things, comprise theoretical and practical instruction; be supervised by the STA; and comply with certain requirements as to the characteristics of the training of specialists that are set out in Annex I to Directive 93/16/EEC [the Directive]. Those requirements include that the training shall be carried out in specific posts recognised by the STA; and that the trainee specialist, whilst participating in all the medical activities of the department where training is carried out, should devote all his professional activity to his practical and theoretical training.

  5. The Directive is of further importance because it sets out a system for the recognition of medical qualifications between member states. The Directive first provides for the mutual recognition between member states of medical qualifications in areas of practice or specialty common to those states. Such commonalty is listed, country by country, in the Directive. These provisions do not apply in the case of Dr Lambiris because his Greek speciality of Dermatology-Venereology is not recognised in the United Kingdom, the country in which he wishes to be recognised and to practise. That however is not the end of the matter, because Article 8 of the Directive makes further provision in relation to persons holding a specialist qualification in one member state who wish to practise as a specialist in another member state. Article 8 reads as follows:

    1.

    Nationals of Member States wishing to acquire one of the diplomas, certificates or other evidence of formal qualifications of specialist doctors not referred to in Articles 4 and 6, or which, although referred to in Article 6, are not awarded in the Member State of origin or the Member State from which the foreign national comes [i.e., are not subject to the system of mutual recognition referred to above], may be required by a host Member State to fulfil the conditions of training laid down in respect of the speciality by its own law, regulation or administrative action.

    2.

    The host Member State shall, however, take into account, in whole or in part, the training periods completed by the nationals referred to in paragraph 1 and attested by the award of a diploma, certificate or other evidence of formal training by the competent authorities of the Member state of origin or the Member State from which the foreign national comes provided such training periods correspond to those required in the host Member State for the specialised training in question.

    3.

    The competent authorities or bodies of the host Member State, having verified the content and duration of the specialist training of the person concerned on the basis of the diplomas, certificates and other evidence of formal qualifications submitted, shall inform him of the period of additional training required and of the fields to be covered by it.

  6. I shall have to return to the meaning and implications of Article 8, but it will be convenient here to quote some general observations about that Article that fell from the Court of Justice in Case C-232/99 (Kingdom of Spain):

    20.

    Article 8(1) of Directive 93/16 thus provides that the person concerned will receive a new diploma in the host Member State after having, if necessary, undergone additional training. It is on the basis of that diploma that he will subsequently be entitled to practise the medical speciality in question in that State. Article 8(2) requires the host Member State to take into account, when determining what additional training is needed, the relevant professional qualification of the person concerned according to principles analogous to those developed in the case-law of the Court on the mutual recognition of professional qualifications.

    21.

    According to that case-law, the principles of which were set out in the judgment in Case C- 340/89 Vlassopoulou [1991] ECR I-2357, paragraph 16, the authorities of a Member State when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a comparison between the qualifications certified by his diplomas, certificates and other formal qualifications and the professional qualifications required by the national rules for the exercise of the profession in question (see, most recently, judgment of 22 January 2002 in Case C-31/00 Dreessen [2002] ECR I-633 paragraph 31).

    22.

    That obligation extends to all diplomas, certificates and other evidence of formal qualifications as well as to the relevant experience of the person concerned, irrespective of whether they were acquired in a Member State or in a third country, and it does not cease to exist as a result of the adoption of directives on the mutual recognition of diplomas (see judgment of 14 September 2000 in Case C-238/98 Hocsman [2000] ECR I-6623, paragraphs 23 and 31).

  7. It will also be convenient to refer here to the important Article 24 of the Directive, which in turn refers to Annex I to the Directive, the terms of the latter being adopted as part of the United Kingdom requirements for award of a CCST, as described in §4 above. Article 24 provides that member states shall ensure that the training leading to a diploma, certificate or other evidence of formal qualifications in specialised medicine should involve the successful completion of six years’ study within the framework of a formal training course; and that the training should include the following requirements:

    1. Theoretical and practical instruction;

    2. A full-time course supervised by the competent bodies or authorities in specific posts recognised by the competent authorities, which posts must be in institutions equally approved by the competent authorities or bodies;

    3. Participation by the trainee in all of the activities of the department in which he is training according to provisions agreed by the competent authorities.

  8. The ESMQO has to be read in the context of the Directive because it recites as its vires section 2(2) of the European Communities Act 1972, the Community obligation in issue plainly being the United Kingdom’s obligation to implement the Directive. So far as Article 8 is concerned, articles 3(4)(b)(i)-(ii) and (c) confer on the STA the functions of the United Kingdom set out in that Article. Mr. McManus QC, for Dr Lambiris, argued that that provision did no more than say who within the United Kingdom was to perform those functions, without specifying how effect was to be given by the STA to the Article 8 rights. That part of the Directive had, therefore, not been implemented in domestic law. In the event (see § 44 below) that point does not affect the outcome of the appeal, but it is plainly wrong. If the STA is obliged by a provision of domestic law to perform obligations placed on the United Kingdom by Article 8, then the STA is bound by the rules of domestic law to act in accordance with the requirements of Article 8: whatever those requirements may, on examination, prove to be.

  9. Having set out the process for award of CCSTs, the ESMQO then turns to the procedure for recognition as specialists of other persons, including those to whom Article 8 applies. It does so by providing, in article 8, that there shall be a specialist register. That will contain the names of holders of CCSTs; and of "other eligible specialists". The latter category is addressed in article 9 of the ESMQO which, because it has featured largely in this appeal, must be set out in full. In reading article 9 it will be convenient to keep in mind that Schedule 2 there referred to is a list of specialties recognised in the United Kingdom and thus eligible for the award of a CCST (see § 4 above). As already noted, Dermatology is such a specialty, Dermatology-Venereology is not. Article 9 of the ESMQO states:

    9.

    Eligible specialists

    (1)

    A person is an eligible specialist for the purposes of article 8(2)(b) if he holds a recognised specialist medical qualification (as specified in article 10) and is -

    (a)

    a national of an EEA State; or

    (b)

    a person who for the purposes of access to and the practice of the medical profession is entitled to be treated in the same way as such a national in order to enable an enforceable Community right to be exercised.

    (2)

    A person is also an eligible specialist for the purposes of article 8(2)(b) if -

    (a)

    he does not fall within paragraph (1); but

    (b)

    he has specialist medical qualifications awarded outside the United Kingdom in a speciality listed in Schedule 2,

    and he satisfies the STA that those qualifications are equivalent to a CCST in the speciality in question.

    (3)

    A person is an eligible specialist for the purposes of article 8(2) (b) if-

    (a)

    he has specialist qualifications awarded outside the United Kingdom in a medical speciality not listed in Schedule 2; or

    (b)

    he has knowledge of or experience in any medical speciality derived from academic or research work

    and he satisfies the STA that these give him a level of knowledge and skill consistent with practice as a consultant in that speciality in the National Health Service.

    (4)

    In the case of a person falling within paragraph (2) or (3) who is as described in sub-paragraph (a) or (b) of paragraph (1) and -

    (a)

    has specialist qualifications awarded outside the EEA which have been accepted by another EEA State as qualifying him to practise as a specialist in that State; or

    (b)

    has acquired specialist medical experience or knowledge in an EEA State,

    the STA shall, when considering whether it is satisfied as mentioned in paragraph (2) or (3), take account of that acceptance and of that medical experience or knowledge."

  10. Dr Lambiris did not seek a CCST. Rather, he sought inclusion in the specialist register under the provisions of article 9(3)(a) read with article 9(4). The specialist qualification awarded outside the United Kingdom on which he relied was his Greek Certificate of medical specialisation (see Article 5(2) of Directive 93/16, in Dermatology-Venereology. He wished, as we have seen, primarily to be entered on the register as a specialist in Dermatology, rather than in Dermatology-Venereology. His application was supported by a letter from the Greek Ministry of Health dated 14 February 2001 which stated that Dr Lambiris had the Greek specialist qualification in Dermatology-Venereology; that to acquire that qualification Dr Lambiris had practised in Great Britain at various hospitals, which were listed, together in each case with the periods of Dr Lambiris’s employment and a statement of the medical area in which he had practised; and continued:

    Our Ministry recognises the education of the doctor in accordance with article 8 of the Directive 93/16EEC and this doctor received the title of specialist after examinations in accordance with our domestic law. Consequently the qualification in Dermatology-Venereology of the above doctor is in accordance with articles 7, 24 and 27 of Directive 93/16.

    Dr Lambiris also relied on periods that he had spent in the United Kingdom as a locum consultant in Dermatology.

    DECISION OF THE STA

  11. Dr Lambiris’s application was rejected, and he therefore exercised his right to appeal to the Appeal Panel of the STA. His complaints were set out in a substantial letter from his solicitors dated 25 May 2001. The following points in that letter may be noted:

    1. The application was under article 9(3) of the ESMQO, article 9(2) thereof being "obviously inapplicable in Dr Lambiris’s case" because he had no "Schedule 2" speciality [because his Greek qualification was in Dermatology-Venereology and not in Dermatology];

    2. Article 9(3) of the ESMQO "must be interpreted in a way that allows Dr Lambiris to seek registration as a specialist Dermatologist on the basis of his Greek specialist qualifications; and/or his additional experience and qualifications, as evaluated under Article 9(4)";

    3. In breach of Article 8 of the Directive, and also of Article 43 EC, no account had been taken of Dr Lambiris’s Greek specialist qualification in Dermatology-Venereology;

    4. No explanation had been given of why formal training certificates provided by UK hospitals to the Greek authorities, and acted on by those authorities in the award of Dr Lambiris’s Greek qualification, had been discounted;

    5. No indication had been given of what period of additional training was required to be fulfilled by Dr Lambiris to meet the requirements of the ESMQO. That failure was in breach of the requirements of Article 8 of the Directive.

  12. The STA equally rejected Dr Lambiris’s application, and it is in relation to that rejection that the present proceedings have been brought. The STA saw its role as to consider whether Dr Lambiris should be awarded either a CCST or should satisfy the STA that he was an eligible specialist under either article 9(2) or 9(3) of the ESMQO: even though, as indicated in § 11(i) above, his solicitors had been adamant that his complaint was and was only under article 9(3). The STA took that course because, as they explained in §9 of their Reasons, Dr Lambiris had previously claimed that the curriculum of the Dermatology-Venereology specialty in Greece was identical to the curriculum of Dermatology in the United Kingdom.

  13. The STA approached its task by reminding itself of the requirements of Article 24 of the Directive, summarised in §7 above, as to the necessary form and content of the training on which the conferment of a specialist qualification has to be based. It rejected the contention that the Greek and the United Kingdom curricula were equal in terms of content. It then turned, in § 10 of its reasons, to the list of posts in the United Kingdom submitted by Dr Lambiris as demonstrating his training experience, which the STA noted had been accepted by the Greek Ministry of Health as contributing to his training for specialist registration in Greece (see §10 above). The STA, no doubt having in mind the requirement of Article 24 that it had just cited that training must be in specific posts recognised for that purpose (see § 7(ii) above), found that there was no evidence that any of the UK posts relied on by Dr Lambiris were training posts (Reasons, §11); and they then proceeded, in §§ 11-14 of their Reasons, to give circumstantial reasons, post by post, why that was so.

  14. The STA then turned to article 9(3)(a) of the ESMQO. They appear to have assumed that the speciality that they were here concerned with, "that speciality" in the words at the end of the article, was Dermatology-Venereology. The STA noted that the minimum required training period under the Directive was three years. Here again, however, they considered that claimed training in the posts relied on by Dr Lambiris had to be disregarded, for the reasons already given in the analysis in respect of any possible claim under article 9(2)(b). The Reasons then continued, at §§ 15-16:

    Accordingly the only educational credit Dr Lambiris can rely upon is the three months he spent in Greece which means that he is two years and nine months short of the required minimum training of three years. Dr Lambiris has failed to satisfy the requirements of article 9(3)(a).

    Article 9(4)(b) provides that the STA when considering whether it is satisfied under Article 9(2) or 9(3) in the case of Dr Lambiris who is from a Member State will take account of his specialist experience or knowledge acquired in a Member State. In relation to Article 9(2)(b) the STA commented upon Dr Lambiris’s letter of appeal, AA5-6, which had alleged that the STA should have looked at the substance of Dr Lambiris’s training in the UK and that it had failed to take into account his experience referred to in his training certificates. Further it was alleged that the STA had failed to adopt the approach of "equivalence" derived from the Directive and EC case law on mutual recognition, Vlassopoulou [1991] ECR 1-2379 and Hocsman. The STA commented that such contentions overlooked the requirements of Article 24 of the Directive EEC 16/93, to which we have referred. We conclude that the STA’s approach to Article 9(2)(b) was wholly appropriate having regard to the requirements of the Directive in respect of training. There was no evidence to show that Dr Lambiris had been involved in a full-time course supervised by the competent authorities or bodies. We reject the contention that the STA should have adopted a broad equivalence view of the UK posts relied upon by Dr Lambiris.

  15. The Appeal Panel then turned to the locum consultant posts relied on by Dr Lambiris. It accepted that although they were service posts they could be taken into account under article 9(4)(b) of the ESMQO if Dr Lambiris had supplied evidence of the clinical content of such appointments. The STA noted that Dr Lambiris had been asked to supply such information, but that it had not been forthcoming. In fact, Dr Lambiris’s solicitors’ letter of 25 May 2001 (see §11 above), written after those requests, did no more than reiterate the complaint that account had not been taken of those posts. The STA did review various references from persons who had worked with Dr Lambiris in those posts, but considered that they did not provide the information that would be required before that experience could be taken into account.

  16. The Panel summed up its conclusions in §18 of its Reasons:

    Dr Lambiris’s appeal has sought to show that the STA was wrong to conclude that he had not satisfied it that he had met the requirements of both Article 9(2)(b) and 9(3) (a) taking into account Article 9(4)(b). Dr Lambiris did not enter into a formal training programme and we are unable on the evidence to reach a different conclusion from that of the STA, namely that Dr Lambiris has not shown that any of his UK posts met the specialist training requirements of the Directive and or that his specialist qualifications gave him a level of knowledge and skill consistent with practice as a National Health Service Consultant We note that the Greek Ministry of Health and Welfare appears to have accepted at face value, without any further enquiry, information from Dr Lambiris that the UK posts relied upon him and itemised in its letter to the STA dated 14 February 2001, A100-101, justified his specialist qualification, although the evidence revealed that none of the posts met the requirement of the Directive namely that training shall be supervised by the competent authorities. The documents at A85-90, which Dr Lambiris maintains were certificates of training prepared by the undersigned Consultants/Professors to inform and satisfy the Greek authorities do not support any contention that the posts referred to were recognised training posts approved by the competent authority, namely the JCHMT, subject to assessment. None of such documents indicate that Dr Lambiris was undergoing any training, apart from a reference in Professor Greaves’s statement at A85 that Dr Lambiris participated in the educational sessions for dermatology trainees, when his appointment at that time was as a Clinical & Research Fellow in Dermatology.

    SOME PRINCIPLES OF LAW

  17. Before turning to the complaints made by Dr Lambiris it will be convenient to deal with some matters of law that were debated in the course of the appeal.

  18. First, the right of establishment in European law, relied on by Dr Lambiris, is mediated through a combination of the very broad principle to be found in Article 43 EC and any further Community legislation passed to give force to that principle in specific situations: in the present case, the Directive. It is only necessary, or permissible, to have direct recourse to the terms of Article 43 when either in general, or in a particular member state, there is no relevant scheme of directives: Case C-238/98 (Hocsman) [32]-[34]. As the judge put it at §7 of his judgment:

    The blanket prohibition in Article 43 will prevent unjustified restrictions such as ‘French doctors cannot practise in the United Kingdom’, but the next step is to harmonise the basis on which the qualification is granted; otherwise it becomes impossible to compare like with like.

    Accordingly, in the present case Dr Lambiris’s assertion of his right of establishment has to stand or fall on the terms of the Directive. It is not correct to argue, as did Mr. McManus, that even if he cannot fulfil the requirements of the Directive he has some separate (and necessarily undefined) right based on the bare wording of Article 43.

  19. Second, as the second paragraph of Article 43 makes clear, the right of establishment is a right to pursue activities "under the conditions laid down for its own nationals by the law of the country where such establishment is effected". That is why the Court of Justice said in Hocsman, at §40, that where a situation arises that is not regulated by a directive on mutual recognition of diplomas the host state

    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 diplomas and that experience with the knowledge and qualifications required by the national rules.

    Mr. McManus said that he particularly relied on this passage. It is to be noted that the criterion that it imposes on the host state is the assessment of the applicant for establishment according to the domestic rules of that host state.

  20. Third, and following on from that principle, an exercise of a right of establishment under the Treaty cannot be used as a means of avoiding rules and requirements that apply to the exercise of that same profession by a subject of the host state. As the Court of Justice put it in Case 33/74 Van Binsbergen [1974] ECR 1299 [13]:

    a Member State cannot be denied the right to take measures to prevent the exercise by a person providing services whose activity is entirely or principally directed towards its territory of the freedom guaranteed by Article 59 [on freedom to provide services] for the purpose of avoiding the professional rules of conduct which would be applicable to him if he were established within the State.

    Mr. McManus argued that this principle was limited to cases of abuse of the system, in the sense of bad faith on the part of the person seeking establishment. The statement of the principle to be found in van Binsbergen indicates that the principle is more general than that, and extends, consistently with the principle stated in Hocsman, to securing that rights of establishment are not used to put a person relying on rights derived from movement between member states in a better position than the citizens of the host state to which he moves.

  21. Fourth, and again consistently with the foregoing principles, where a host state is faced with certification by the state of origin of the completion of requirements of professional training, which certification however relates to training or other activities in fact undertaken in the host state, then, as the Court of Justice put it in Case 130/88 van de Bijl [1989] ECR 3039[26]:

    the host Member State cannot be obliged to overlook matters which occurred within its own territory and which are of direct relevance to the real and genuine character of the period of professional activity completed in the Member State from which the beneficiary comes.

  22. Mr. McManus argued that that observation was limited to the facts of van der Bijl, which concerned a certificate that was manifestly inaccurate. I am unable to agree. The Court of Justice in van de Bijl dealt in § 23-24 of its judgment with the normal obligation not to call into question a certificate from the state of origin save in cases of manifest inaccuracy. It then went on to address what it plainly considered to be a different case, to which the limitations stated in §§ 23-24 did not apply, where the certification by the state of origin in fact related to activities conducted in the host state itself. That that was seen as a separate case is reinforced by the fact that the Court of Justice cited van Binsbergen in support of the principle that it stated in § 26 of its judgment.

  23. Mr. McManus also argued that the principle stated in van de Bijl was an exception from a more general rule, that certificates passing between member states should not be challenged. So it is, for the reasons given in § 22 above; but the exception is posited on the fact that the activities certified took place in the territory of the host state, rather than on any issue of "manifest inaccuracy". That renders it unnecessary to consider in any detail the cases that Mr. McManus relied on for what he contended to be the general rule. However, to put the matter briefly, and in the particular context of this case,

    • the opinion of Jacobs A-G in C-110/01 Tennah-Durez concerned a certificate given under Article 9(5) of the Directive relating to automatic recognition of qualifications (see §5 above);

    • Case C-202/97 Fitzwilliam concerned a system of certificates that were deemed by the underlying legislation, Article 11(1)(a) of Regulation 574/72, to be binding on the recipient state; and

    • Case C-5/94 Hedley Lomas [1996] ECR I-2553 concerned the need for mutual trust between member states in relation to activities carried out in the territory of the other state: see §19 of the judgment of the Court of Justice.

    None of these authorities can in any way be relied on to offset the determination of the Court of Justice, set out in § 21 above, as to the rights of the host state in relation to assessment of a certificate in relation to activities carried out in its own territory. Nor are they relevant to a case such as the present, where the certificate from the state of origin is not relied on as certifying a qualification in the state of origin that is entitled to automatic recognition in the host state; but, rather, is only evidence of training or abilities which the authorities of the host state takes into account in determining whether to award its own qualification.

  24. Fifth, and following on from the last observation, it is plain from the observations of the Court of Justice in § 20 of its judgment in C-232/99, Kingdom of Spain, that the purpose of Article 8 of the Directive is to enable the incoming applicant to acquire, and thereafter to practise under, the qualification awarded by the host state. That is an entirely different position from that which applies to the automatic recognition of the qualification awarded by the state of origin. Where the incomer holds a qualification in a specialty that is recognised throughout the EU (Article 4 of the Directive); or in both the state of origin and in the host state (Article 6 of the Directive), then by both of those provisions the host state shall recognise the qualification "by giving such qualifications the same effect in its territory as those which the Member State itself awards". That structure is reflected in the ESMQO, where part III, articles 6-7, deal with the host state’s qualification, the CCST; and part IV, article 8 onwards, introduces the further concept of the specialist register.

  25. The judge, in my respectful view rightly, saw this as an important aspect of the case. He said, at § 24 of his judgment:

    It is in my judgment fundamental to the understanding of the issues in this case to appreciate that the ESMQO goes further than required by Community law. Article 9 introduces the concept of an ‘eligible specialist.’ This is not required under the Directive or under E.C. free movement principles. It is an additional route for entry onto the specialist register in the United Kingdom. As Lesley Hawksworth, the chief executive of the S.T.A ., points out in her evidence, outside the system of mutual recognition there are three routes towards entry in the specialist register. A Doctor may

    (i)

    obtain a C.C.S.T. awarded by the S.T.A. , 

    (ii)

    satisfy the S.T.A. that he or she has a foreign qualification that is equivalent to a C.C.S.T. in the speciality in question; or

    (iii)

    satisfy the S.T.A. that he has a foreign specialist qualification or knowledge of or experience in any medical speciality derived from academic or research work that gives him a level of knowledge or skill consistent with practice as a consultant in that speciality in the National Health Service.

    GROUNDS OF APPEAL

  26. When she gave permission for this appeal Hale LJ observed:

    The grounds of appeal are interlocking and interrelated so that it is difficult to distinguish between them in giving permission even though some individual arguments have less force than others. They and the ‘skeleton’ argument could with advantage be shorter.

    It is a matter of regret that those advising Dr Lambiris did not feel disposed to act on that wise guidance. Additionally, the appeal changed its shape in the course of argument before us; and in some part appeared to differ from the way in which the case had been presented below, with the result that some parts of the valuable judgment of the judge are no longer relevant to our task. I have therefore found it necessary to proceed not by going seriatim through the Grounds, but by seeking to isolate the particular matters of which Dr Lambiris complains. I trust that this approach gives full weight to all aspects of his case.

    STATUS OF THE GREEK CERTIFICATE

  27. Dr Lambiris did not argue that the STA was bound by the Greek certificate that is described in § 10 above. He could not have so argued without converting the case into one of automatic recognition. He did, however, argue that the STA should have started with the Greek certificate, and have recognised that principles of Community law, including in particular Article 43 of the Treaty, only permitted the questioning of the nature of the certified training in exceptional circumstances. The principle, or at least guidance, was to be found in Article 22 of the Directive:

    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.

    Therefore, even if (which was not conceded) the STA had justified doubts about the training attested to by the Greek certificate, it could only enquire as to the authenticity of the certificate, as a document, and not go behind its contents.

  28. This proposition has only to be stated for it to be seen how surprising it is on the facts of this case. Had the Greek certificate related to training received by Dr Lambiris in Greece, then this appeal to comity within the EU would have much to commend it. But it requires it to be assumed that Community law has departed a long way from commonsense to hold that, where the responsible authority in the United Kingdom is seeking to assess the content and status of training undertaken in the United Kingdom, it is limited in its enquiries to satisfying itself as to the authenticity of a certificate about that training issued by the authorities of another member state. Community law does not require such a departure, as the jurisprudence described in §§ 21-23 above demonstrates. The approach taken by the STA in § 16 of its Reasons was fully justified by that jurisprudence.

  29. That jurisprudence also prevents the STA from being constrained by the terms of Article 22 of the Directive. However, and in any event, even though the terms of Article 22 may appear verbally to extend to the certificates and other documents referred to in Articles 8.2 and 8.3, it is plain from the function of assessment and comparison that those Articles confer on the authorities of the host state, as further expounded by the Court of Justice in §§ 20-22 of its judgment in C-232/99, Kingdom of Spain, that the authorities of the host state are not constrained by the verbal terms of the incoming certificate: and a fortiori not so constrained when those authorities well know of their own experience what the reality of the alleged training in fact was.

    CONSTRUCTION AND APPLICATION OF ARTICLE 9(3) OF ESMQO

  30. Although this issue was little, if at all, ventilated before the judge, it proved in argument before us to be at the centre of the case. On the assumption (which Dr Lambiris did not accept, but which I have held to be correct) that there was no Community law objection to the STA’s handling of the Greek certificate, it was contended that the STA still erred in their approach to article 9(3). The Ninth Ground of Appeal said:

    i.

    The STA should have looked at the Greek qualifications and seen what level of knowledge and skill they had given the Appellant and not simply whether they were acquired in training courses approved by the UK authorities

    ii.

    the Appellant should have had his Greek qualification substantively examined to see whether it gave him the level of skill consistent with practice as either a dermato-venereologist or as a dermatologist.

  31. The nub of this complaint was in fact twofold.

    • First, the STA applied the wrong test, of training in supervised training posts, in assessing whether Dr Lambiris had a level of knowledge and skill consistent with practice as a consultant.

    • Second, even if that were the right test, the STA should have accepted that Dr Lambiris’s posts were in fact training posts, and supervised by the Greek authorities, as those authorities had so certified.

  32. The first of these complaints falls by the application of simple principles of English administrative law. The STA are an expert body, making decisions about qualifications in, and the practice of, the profession in which they are expert. This court would have to find itself well into the territory of irrationality before it could presume to say that the assessment of a specialist’s qualifications on the basis of the type of training and supervision that he had received was simply wrong. But, far from the STA’s approach being irrational, or simply an Anglo-Saxon eccentricity, the requirements of Article 24 of and Annex I to the Directive, that are summarised in §7 above, show that the approach of the STA to specialist qualifications is entirely in line with common practice.

  33. That is enough to dispose of this point, but I feel constrained to add that the course that it was argued that the STA should have adopted, of submitting Dr Lambiris to a separate examination of his skills and knowledge, would impose a quite unreasonable burden on the profession. That course would also be inconsistent with the statutory task of the STA under article 9(3)(a), which is to assess whether the applicant has satisfied it that his foreign specialist qualification gives him the requisite level of knowledge and skill. It is therefore the qualification, not the applicant, that has to be examined.

  34. The second limb of this submission was that the STA should have accepted that Dr Lambiris had in fact completed an appropriate and appropriately supervised training course because the Greek authorities had certified the courses as such. There are four problems about that contention.

    • First, so far as any duty under Community law is concerned, it is plain that the host state not only is entitled to, but must, assess the incoming applicant according to the rules of the host state: see the jurisprudence set out in § 19 above.

    • Second, although Article 24 does not specifically so say, because absent the present unusual facts it did not need to do so, commonsense cries out that the competent authorities who have to recognise particular posts and supervise training in those posts are the authorities of the jurisdiction in which the posts are located.

    • Third, in the material that was before the STA there was in fact no indication that the Greek authorities had engaged in any selection of posts or training in them, but only comparatively brief general reports from the United Kingdom institutions, that had been sent to the Greek authorities by Dr Lambiris. These reports did not persuade the STA that the posts had been training posts: see § 13 above. During these proceedings Dr Lambiris sought to expand the material by referring to supervisory meetings that he had had with the Greek authorities. Since that material was not relied on before the STA it cannot be used to undermine their decision; but in any event what we were shown (it is again not clear whether this point was taken before the judge) fell far short of anything that would establish relevant supervision on the part of the Greek authorities.

    • Fourth, the argument that it was for the STA, if dissatisfied with the Greek certification, further to question the Greek authorities overlooks that it was for Dr Lambiris to satisfy the STA with the material that he chose to put forward; and in any event there is no indication that the Greek authorities could have added anything that would have satisfied the STA.

  35. It will be convenient here to mention an argument raised by Mr. Lasok QC for the Respondent, who pointed out that the Greek certificate had stated that Dr Lambiris’s training in the United Kingdom was recognised in Greece in accordance with Article 8 of the Directive.

  36. That, he said, demonstrated that the Greek authorities relied on a secondary assessment, of the kind envisaged in Article 8.2, of training conducted in another member state; and was therefore inconsistent with an argument that the Greek authorities claimed to have been the primary supervisor of the training. I would, I think, hesitate to rely on this argument if it stood alone; but it certainly underlines the difficulties already set out in relying on the involvement of the Greek authorities to convert Dr Lambiris’s experience in the United Kingdom into a period of supervised training of the kind required by the STA and by Article 24.

    IRRATIONAL ASSESSMENT OF DR LAMBIRIS'S EXPERIENCE

  37. It will be recalled that the STA were prepared to take into account Dr Lambiris’s experience as a locum consultant, but found it to be inadequate: see § 15 above. The STA also considered that the certification relied on by the Greek authorities showed almost no engagement in training: see § 16 above. At a late stage of the appeal, indeed in Mr. McManus’s reply, it was argued that the underlying documents did not support the STA’s conclusions. It was of course very unsatisfactory that this complaint was only raised when it was, not least because that did not give the STA any opportunity to respond to it. The point however fails for the same reasons as the general attack on the STA’s reasoning. It is simply not open to this court when addressing a specialist area, in which the appropriate nature and intensity of "training" is a matter of expert judgment, to try to form its own view on the basis of the underlying materials; and the more so when the court does not have the benefit of a reasoned explanation of how the decision-maker addressed those materials. For what it is worth, however, for my part such documents as we were taken to fell well short of indicating that the overall decision of the STA had been incorrect, and much less irrational.

    THE "TRAINING GAP"; AND ARTICLE 8 GENERALLY

  38. I seek under this head to group a range of arguments that were adduced to demonstrate that the process adopted by the STA had not afforded to Dr Lambiris the protection to which he is entitled under Article 8. In particular, he had not been told, as Article 8.3 provided, what further training he needed to undertake in order to satisfy the United Kingdom’s requirements (colloquially called before us "the training gap"). It should first be said that these complaints fall in limine, because Article 8 is concerned with access to the United Kingdom qualification, and it was not that which Dr Lambiris sought: see § 24 above. However, we have already considered aspects of Article 8 when addressing other issues; and if the procedure adopted by the United Kingdom in fact deprives Dr Lambiris of Community rights that he otherwise would have, then he has a clear and legitimate complaint.

  39. The Reasons of the STA do not directly address Article 8. That was no doubt because the letter of appeal that they were considering, summarised in § 11 above, raised Article 8 only in the context of the use made of the Greek qualifications, which is dealt with in §§ 27-29 and 34-36 above; and the training gap. However, if Article 8 is applied to the present case, its salient features are that (Article 8.1) it permits the host state to require further training; but (Article 8.2) requires the host state to "take into account" training periods attested by the state of origin "provided such periods correspond to those required in the host Member State for the specialized training in question". The short answer to this point is, therefore, that had the STA gone through that exercise, it would have applied to Article 8 the conclusion that it reached in its article 9(3)(a) enquiry that Dr Lambiris had had no, or virtually no, training in the relevant sense of that term. For the reasons already given, that is a conclusion that this court cannot go behind. So to approach the matter, on the basis of United Kingdom requirements, is also consistent with the direction in the last phrase of Article 8.2: in connexion with which it is in my view quite impossible to argue, as did Dr Lambiris, that the issue of the correspondence of "training periods" with those required in the host state is limited to a comparison of the length of time occupied by those periods, irrespective of their content.

  40. It is important to note also that the STA thought itself to be addressing Dr Lambiris’s status as a specialist in Dermatology-Venereology: see § 14 above. It was in respect of that speciality that the STA thought that Dr Lambiris had not received training that they were prepared to recognise. Accordingly, the STA’s decision does not turn simply on any scepticism as to the relevance of his training to Dermatology: he was regarded as untrained, and untrained to the same extent and for the same reasons, in either speciality

  41. As to the "training gap", to the extent (which, for the reason stated in § 38 above, I doubt) Dr Lambiris was entitled to any guidance from the STA under Article 8.3, he received such guidance in the passage that is set out in § 14 above. Dr Lambiris is very well aware of what he needs to do to qualify under the route envisaged by Article 8: that is, for the reasons given in § 24 above, to receive a CCST. Indeed, it was effectively conceded that this point is largely parasitic on the main complaint: Dr Lambiris is dissatisfied not because he does not know what training is required of him, but because he thinks that he has undertaken that training already.

    DR LAMBIRIS AS A MEDICAL PRACTITIONER IN THE UNITED KINGDOM

  42. Dr Lambiris has practised medicine in the United Kingdom since 1995. He is now a British subject. He wishes to be recognised as a specialist in the United Kingdom in Dermatology although he has gone through none of the training that would be required for such recognition of a British subject who had spent his whole career in the United Kingdom. The judge specifically found that, in deciding to proceed by the route of seeking registration as an eligible specialist, rather than seeking the CCST to which Article 8 is the gateway (see § 24 above), Dr Lambiris had not acted in bad faith. The comparison between the treatment to which he says he is entitled and the position of a person seeking a CCST is, however, striking. Although I would hesitate to decide the case on this point, it is a useful further test to apply to it the jurisprudence set out in § 20 above. The objective effect of Dr Lambiris’s case, were it to succeed, would indeed be to enable him, through his assertion of his rights of establishment, to avoid the professional rules, as to the training required for the award of a CSST, that apply to persons whose connexion as to establishment is solely with the United Kingdom.

    OTHER ISSUES

  43. Various other points were debated, either here or below, which in the event do not affect the outcome of the appeal. I will deal with them shortly.

    • First, the parties disputed whether or not the Directive had been effectively implemented in domestic law (see § 8 above). That issue does not affect the outcome of the appeal because, to the extent that the activities of the STA fall within the ambit of Article 8, or of any other part, of the Directive, then those requirements of Community law have to be honoured, implemented or not.

    • Second, there was much debate as to whether "that speciality" in article 9(3) of the ESMQO referred to Dermatology-Venereology or to Dermatology. We have seen that the STA thought that it was addressing Dermatology-Venereology. This point also does not affect the outcome of the appeal, because, as demonstrated for instance in § 40 above, the STA saw its essential conclusions as applying to Dr Lambiris’s training position in general, whether in relation to Dermatology-Venereology or to Dermatology.

    CONCLUSION

  44. I fear that I am not persuaded by any of the many arguments ventilated before us. I would dismiss this appeal.

    Lord Justice Rix

  45. Dr Lambiris, who is now 37 years old, graduated from the medical school of the University of Athens in 1992 with a degree in medicine, which is automatically recognised in the UK, and began a required minimum one year period of general professional training in Greek hospitals.

  46. Following that, in December 1993 he commenced the official training programme of the Greek ministry of health for the Greek specialty of dermatology-venereology. He subsequently came to the UK to continue his training towards a qualification in that specialty with the authorisation of the Greek ministry. From May 1995 to January 1999 he was employed in this country, full time (with the exception of what the STA judged to be a 7 month part time period), in various hospital posts as a dermatologist, a period of nearly four years. He was variously employed as a clinical and research fellow in dermatology at St Thomas’s, London, as a senior house doctor in dermatology at Hope Hospital, Salford, as a registrar in dermatology at King’s, London, as a registrar in GU medicine – HIV at St Thomas’s, London, as a registrar in dermatology and clinical medical officer in GU medicine at St Mary’s, London, and as a specialist registrar in dermatology at UCH, London. The status of those posts as UK recognised training posts has been in dispute, and I do not intend to go behind the STA’s conclusion that none of them would be recognised by the relevant UK medical authorities as a specialist training post in dermatology. Nevertheless, Dr Lambiris subsequently sat and passed the required Greek examination in dermatology-venereology (no examination is required for the UK specialty of dermatology) and was awarded a distinction.

  47. In June 1999 Dr Lambiris commenced employment as a locum consultant dermatologist at the Plymouth Hospitals NHS Trust. He has held two other such locum consultant posts in Luton and London, a total to date of nearly four years in such positions. He has submitted references from the various professors and specialist doctors who have supervised him over the years.

  48. The STA appeal decision dated 23 October 2001, at which time Dr Lambiris had been more than two years into his locum consultant experience, concluded in these terms:

    It is clear from the documentation that Dr Lambiris is an accomplished physician who is respected by his professional colleagues. We consider it unfortunate that he did not enter into any formal specialist training programme in the UK.

  49. There is no doubt that Dr Lambiris is a qualified specialist in the Greek specialty of dermatology-venereology. He wished to be recognised in the UK in the related specialty of dermatology, or, faute de mieux, in his Greek speciality. But primarily he wished to be recognised in dermatology. So he applied to be put on the specialist register for dermatology. That application should either have been dealt with under Article 8 of the Directive (for these purposes the STA has been given the power under article 3(4) of the ESMQO, or what I shall call the "Order", to give effect to Article 8); or it should have been dealt with under articles 8(2)(b) and 9(3)(a) of the Order, under which a person is entitled to be placed on a specialist register if he satisfies the STA that his specialist qualification awarded outside the UK, together with specialist medical experience or knowledge acquired in an EEA state (see article 9(4)(b) of the Order), give him –

    a level of knowledge and skill consistent with practice as a consultant in that specialty in the National Health Service.

    (For Article 8 of the Directive see para 5 in the judgment of Buxton LJ above, and for article 9(3) and (4) of the Order see para 9.)

  50. Unfortunately, an error was made at the outset when the GMC placed his name on the specialist register for dermatology without requiring him to go through either process. When the error was discovered and his name was removed, Dr Lambiris was aggrieved, and relations were soured. That is a great pity, for I cannot help feeling that this dispute would have been easier to resolve, or may indeed have been entirely avoided, if the parties had been more dispassionate. As it is Scott Baker J (as he then was) said this (at para 4 of his judgment):

    In my judgment neither the tenor of the correspondence nor the time taken reflects very well on the authorities. I would have expected, in ordinary circumstances, these bodies to do their best to assist someone in the Claimant’s shoes by explaining to him precisely what was required, any difficulties that had to be overcome and what steps he might consider taking to overcome them.

  51. It is perhaps a symptom of that souring of relations that as late as 2001 the STA was questioning the authenticity of Dr Lambiris’s Greek specialist qualification with the authorities in Greece. That is now water under the bridge, but it is illustrative of the lack of faith evident in the process, which I suspect was reciprocal.

  52. At any rate, following the removal of his name from the specialist register in dermatology, the GMC first advised Dr Lambiris in July 1999 to apply to the STA for inclusion on the specialist register in respect of dermatology-venereology and then in July 2000 did so again, this time in respect of dermatology. So it was that on 29 July 2000 Dr Lambiris made such an application, for entry on the specialist register in dermatology. This was, as suggested, an application under article 9(3)(a). As the STA’s consideration of the application dragged on, the difficulties of that application came to light. It was suggested to his then legal advisers that whereas he could apply for registration as a dermatologist under article 9(2)(b), he could only apply for registration as a dermatologist-venereologist under article 9(3)(a). The trouble with article 9(2)(b), however, as Dr Lambiris himself pointed out, was that such an application required him already to possess a foreign qualification in dermatology, which of course he did not possess. The trouble with article 9(3)(a) as a route forward was that it referred to "that specialty", which on one view – a view which on the submissions of Mr. Lasok QC on its behalf the STA has maintained to this appeal – must refer to dermatology-venereology (i.e. "a medical specialty not listed in Schedule 2", see the antecedent language of article 9(3)(a)) rather than to dermatology. At the same time it is apparent from correspondence passing between Dr Lambiris or his advisers and the STA that Dr Lambiris was under the impression that article 9(3)(a) was the means offered to him by English law (however inauspicious) to vindicate his Article 8 (Directive) rights.

  53. On 30 March 2001 the STA wrote to Dr Lambiris to inform him of its decision to reject his application. The decision said that –

    the STA is not satisfied that you have demonstrated to this Authority that your overseas specialist qualifications and subsequent experience in the UK has resulted in you either being equivalent to the standards required for the award of a CCST in Dermatology - Article 9(2)(b) and Article 9(4)(b), nor given you a level of knowledge and skill consistent with practice as a NHS consultant in Dermatology/Venereology – Article 9(3)(a) and Article 9(4)(b).

  54. It is plain from that passage that the STA was treating Dr Lambiris’s application as being under article 9(2)(b) for inclusion on the register as a dermatologist, which on any view was incoherent, and, consistently with its view of the meaning of "that specialty" as referring to dermatology-venereology, as being under article 9(3)(a) for inclusion on the register only as a dermatologist-venereologist.

  55. By his solicitors’ letter to the STA dated 25 May 2001 Dr Lambiris appealed that decision. It is plain from the terms of that letter that Dr Lambiris was seeking to invoke his Article 8 (Directive) rights. Thus it asserts (on page 5) that there has been a breach of Article 8.1 and 8.2 of the Directive, inter alia in that the decision had contained no mention at all of the existence of his Greek qualification. In the same passage it refers to the failure to identify the so-called "training gap" which needs to be filled by appropriate training or experience, a plain albeit implicit reference to Article 8(3). There is, however, also an explicit reference to Article 8(3) (at para 5 on pages 6/7 of the letter) which is said to be "directly effective". There is complaint that the decision’s failure to identify the "training gap" or to indicate what further steps Dr Lambiris needs to take to bridge that gap is itself a breach of his directly effective EC law rights. It is also plain from the letter that Dr Lambiris is making no application under article 9(2)(b) of the Order, which is rightly described as "obviously inapplicable".

  56. In the decision of its appeal panel dated 23 October 2001 the STA makes no mention at all of Article 8 (other than in referring to the certificate from the Greek ministry discussed by Buxton LJ at para 36 above: see para 6 of its reasons). It considered all over again an application under article 9(2)(b) of the Order, even while recognising, by quoting the words "obviously inapplicable", that such an application was not before it. For these purposes it had to ask itself whether Dr Lambiris’s Greek qualifications were "equivalent to a CCST in the specialty in question", viz dermatology, and concluded that they were not. Of course, Dr Lambiris, who in any event did not have a qualification in dermatology, was not asserting that they formally were; he was rather seeking to discover what, if any, "training gap" he was required to bridge. In arriving at that conclusion, the appeal panel agreed with the original decision that neither the Greek specialist training programme nor any of the UK posts relied on by Dr Lambiris met the criteria of JCHMT, viz the Joint Committee of Higher Medical Training, which is the UK competent authority for defining training requirements pursuant to Article 24 of the Directive and article 7 of the Order. As JCHMT stated in its recommendation to the STA for the purpose of its original decision, "none of the posts occupied in the UK .... are recognised for specialist training in Dermatology in the UK".

  57. The STA then went on to consider the position under article 9(3)(a) of the Order, and applied the same reasoning to the test under that provision. As the appeal panel stated (at para 15 of their reasons) –

    The STA’s approach to the UK posts relied upon for training purposes by Dr Lambiris, as the STA commented in its submission, apply equally to this Article and we have already concluded that the STA was correct to disregard such posts for the required specialist training purposes.

  58. Having already concluded that "Dr Lambiris has failed to satisfy the requirements of Article 9(3)(a)" (the final sentence of para 15), the appeal panel went on to consider Dr Lambiris’s experience or knowledge for the purposes of article 9(4)(b). For these purposes they asked themselves whether either the training posts or the subsequent locum consultant experience added anything under this provision. As for the training posts, the answer was that they did not, but for the same reason as before (para 16). As for the locum consultant experience, the appeal panel seem to have asked themselves whether there was evidence "to demonstrate that he had reached an equivalent standard to the breadth and depth of knowledge and expertise required for the award of a CCST in Dermatology" (para 17). They concluded (ibid) that for this purpose the references obtained left them "with insufficient knowledge of the content of such jobs".

  59. In short, the STA appeal panel asked themselves essentially two questions:

    1. For the purposes of article 9(2)(b), had Dr Lambiris satisfied them that his Greek qualifications (in any event inadmissible, since not in a specialty listed in Schedule 2) were "equivalent to a CCST" in dermatology?

    2. For the purposes of article 9(3)(a), had Dr Lambiris satisfied them that his Greek qualifications in dermatology-venereology gave him "a level of knowledge and skill consistent with practice as a consultant in that specialty in the National Health Service"?

    Both questions were answered on the same essential ground: that his failure to undertake training in the UK in formally recognised training posts meant that his application did not get to first base. The appeal panel also asked themselves a third question, under article 9(4)(b), relating to his experience or knowledge, but only after finding that his application had already failed, and in large part by applying the same formal test.

  60. In his application to the court Dr Lambiris’s essential complaint, however intricately presented, was that he had not been accorded his rights under Article 8 of the Directive. The response of the STA, and of the Secretary of State for Health who was permitted to intervene, was that Dr Lambiris had never requested his rights under Article 8. Instead he had merely requested his name to be included in the specialist register in dermatology under article 9(3)(a) of the Order. This, it was submitted, was a purely domestic procedure, which had nothing to do with EC law, nothing to do with the Directive, and which need not be construed by reference to the Directive. Scott Baker J agreed. Thus (at para 19 of his judgment) he said:

    It seems to me clear that the Claimant has chosen not to proceed by route one to obtain a CCST in dermatology as provided by Article 8 of the Directive but has instead sought entry onto the specialist register through route two as an ‘eligible specialist’. This is an additional route not required by Community law but provided by the domestic legislation to which I shall shortly come. I should make it clear that no party alleges any bad faith on the part of the Claimant. However, he did expressly choose to follow a route not laid down by the Directive, thus by-passing the requirements there imposed.

    The judge then went on to deal with the domestic law.

  61. On this appeal, Dr Lambiris has again centred his core complaint in the submission that the STA appeal panel’s approach has not accorded to him the assistance and protection of Article 8 of the Directive. On behalf of the STA, Mr. Lasok has again submitted that Dr Lambiris has chosen an entirely domestic path, under article 9(3)(a) of the Order. "Accordingly, it [article 9(3)(a)] does not fall to be construed in accordance with Article 8 of the Directive" (para 88 of Mr. Lasok’s skeleton). Consistently with that approach, Mr. Lasok continued to submit that "that specialty" in article 9(3)(a) was a reference to dermatology-venereology. The Secretary of State, in his skeleton argument, has directly addressed what he submits is the consequence of Dr Lambiris’s choice of route as follows:

    29.

    Therefore the Appellant could have applied for a CCST in dermatology in accordance with his rights under Article 8 of the Directive as implemented by Article 3(4) read with Articles 6 and 7 of the ESMQO. He did not do so, but could of course still make such an application. He would need to make an application for a CCST in dermatology, to have his existing training, qualifications and practical experience assessed in accordance with Article 8(2) of the Directive and the ECJ’s free movement case law, and then to undertake any additional training which the STA required in accordance with Article 8(3) .... The Appellant’s suggestion that this interpretation of the Directive and the ESMQO would deny "Any national of an EU Member State who has a medical specialty not recognised in the UK .... [any] credit at all in the UK for his qualification in the Member State of origin" and would require that person to "retrain from scratch" is accordingly fundamentally misconceived ....

    That need to retrain from scratch is, however, essentially what the decision of the STA appears to have indicated to Dr Lambiris.

  62. In the event, I find myself regretfully and respectfully disagreeing about the outcome of this appeal, albeit on a narrow point. Despite Dr Lambiris’s long-stop submission that the decision of the appeal panel of the STA was irrational and perverse, I would not seek to second-guess STA’s expert views of the questions which they set themselves to answer. I would also gratefully adopt Buxton LJ’s analysis of Community law and the jurisprudence of the European Court of Justice. I am, however, reluctant to conclude that the STA has determined an issue which both it and the Secretary of State in their separate ways agree that the appeal panel never had to face, and which in the passage just cited is said to lie, potentially, in the future. Unlike the judge, and the submissions of the respondents to this appeal, however, I am satisfied that Dr Lambiris did seek, by his application to the STA, to have his rights under Article 8 of the Directive determined. He wrongly considered that the application which it was suggested he make under article 9(3)(a) of the Order, to be entered as an eligible specialist on the register, was the UK mode for vindicating his rights under Article 8 of the Directive. In my judgment, nevertheless, he was asking for his case to be considered under that Article, and I consider that he should have been treated as an applicant for those purposes.

  63. I recognise that, in the light of Buxton LJ’s powerful reasoning, it can be argued with force that, albeit under another heading, Dr Lambiris has received consideration of his rights under Article 8; or, to put the point another way, that the effect of what the STA has already determined makes it impossible for Dr Lambiris to make any progress under Article 8. At the end of the day, however, I am reluctant to arrive at that conclusion against him. The STA has never, on its own case, directly considered an application under Article 8. Its own counsel has submitted that Community law is irrelevant to his application. The Secretary of State has acknowledged that consideration of an Article 8 application still lies in the future, and could be less unpromising than is suggested on the basis of the reasoning so far. In my judgment it is dangerous to seek an answer to an application as yet unrecognised by the STA (although in my view properly invoked by Dr Lambiris) through a different lens. The STA has not scrutinised Article 8, and the result is that this court has had less help on its meaning and effect than I would have liked. What is the effect of the mandatory obligation "shall, however, take into account"? What is the width of the proviso "provided such training periods correspond"? That cannot be understood quite literally, since otherwise any failure to correspond would obliterate entirely any obligation to take into account. It would seem therefore that the proviso is probably to be interpreted along the lines of "to the extent that". In any event, what is the correspondence required? I would accept that it includes both content and duration (see Article 8(3)), and not merely duration as was submitted by Mr. McManus QC for Dr Lambiris: but I am not clear that it necessarily means that any failure to match all of the requirements of Article 24 means that there is, pro tanto, nothing to take into account, or that the periods in question have simply to be disregarded. Moreover, since the obligation is to "take into account" and for those purposes, it seems, to verify the content and duration of the specialist training (see Article 8(3)), does it follow that the total burden of proof and persuasion lies on the applicant, as it plainly does under the domestic Order with its language of "if…he satisfies the STA"?

  64. Dr Lambiris’s letter to the appeal panel of the STA drew particular attention to Article 8(3) and the question of the so-called "training gap". The appeal panel failed to address that question at all. On the STA’s approach and submissions, it did not have to. The issue under article 9(3)(a) was yes or no, satisfied or not. Article 8 as a whole and its third paragraph in particular are different. Again, the particular lens used may be critical.

  65. Finally, there is the additional factor that under article 9(3)(a) the test is "a level of knowledge and skill consistent with practice as a consultant", or what may be called the consultant standard. I am not persuaded that that is identical with the standard required of a properly qualified specialist trainee. Mr. Lasok himself made submissions in his skeleton which appear to me to recognise that it is not, and in any event he at no time submitted that it is. Mr. Parker QC on behalf of the Secretary of State, on the other hand, submitted that the consultant standard is identical with the qualified specialist trainee standard, or what might be called the CCST standard, but there is no evidence brought to this court’s attention that that is so, and in principle it seems to me to be unlikely. As I say, Mr. Lasok’s submission on behalf of the STA was not consistent with that proposition. Prima facie it seems to me therefore that the test under article 9(3)(a) is more onerous than the test under Article 8. On the STA’s approach, that article 9(3)(a) is an additional domestic procedure, that may not matter. If, however, the article 9(3)(a) procedure has to be compatible with Article 8 principles, then it seems to me that it is not, or may not be. On the STA’s case, that has never had to be gone into.

  66. For these reasons, which I have endeavoured to state, I would for myself have allowed Dr Lambiris’s appeal in part and remitted the matter back to the STA for a fresh determination of his application under Article 8 of the Directive. I would not, however, for the reasons given by Buxton LJ, have been willing to make the declarations as to the effect of Article 8 which Dr Lambiris has sought in his appellant’s notice.

    Lord Justice Aldous

  67. I have had the advantage of reading in draft the judgments of Lord Justice Buxton and Lord Justice Rix. I agree with the reasoning and conclusion of Lord Justice Buxton and shall confine my judgment to a consideration of Dr Lambiris’s claim under Article 8 of the Directive. Although the Article has been set out in the judgment of Lord Justice Buxton, I set it out again for convenience.

    Article 8

    1.

    Nationals of Member States wishing to acquire one of the diplomas, certificates or other evidence of formal qualifications of specialist doctors not referred to in Articles 4 and 6, or which, although referred to in Article 6, are not awarded in the Member State of origin or the Member State from which the foreign national comes, may be required by a host Member State to fulfil the conditions of training laid down in respect of the speciality by its own law, regulation or administrative action.

    2.

    The host Member State shall, however, take into account, in whole or in part, the training periods completed by the nationals referred to in paragraph 1 and attested by the award of a diploma, certificate or other evidence of formal training by the competent authorities of the Member State of origin or the Member State from which the foreign national comes provided such training periods correspond to those required in the host Member State for the specialized training in question.

    3.

    The competent authorities or bodies of the host Member State, having verified the content and duration of the specialist training of the person concerned on the basis of the diplomas, certificates and other evidence of formal qualifications submitted, shall inform him of the period of additional training required and of the fields to be covered by it.

  68. Article 4, referred to in Article 8, requires Member States to recognise qualifications listed in Article 5. Those qualifications do not include dermatology. Article 6 is concerned with formal qualifications in specialist medicine and requires automatic recognition of specialized qualifications in subjects listed in Article 7. Dermatology is not included. Thus Dr Lambiris was not entitled to automatic recognition.

  69. Dr Lambiris is a national of Greece and the United Kingdom and he wished to acquire evidence of formal qualification in the United Kingdom, either in dermatology or, if that was not possible, in dermatology-venereology. That being so, Article 8.1 entitled the United Kingdom to require him "to fulfil the conditions of training laid down in respect of the speciality by its own law, regulation or administrative action." It is to be noted that the "conditions of training" referred to are those laid down in respect of the speciality by the United Kingdom in its own law. There is no dispute that to become a recognised specialist in dermatology, a period of four year’s specialist training has to be completed in a recognised training institution. That requirement as to the form of training is consistent with the obligation imposed by Article 24 of the Directive which is as follows:

    Article 24

    1.

    Member States shall ensure that the training leading to a diploma, certificate or other evidence of formal qualifications in specialized medicine, meets the following requirements at least:

    a.

    it shall entail the successful completion of six years' study within the framework of the training course referred to in Article 23; the training leading to the award of the diploma, certificate or other evidence of specialization in dental, oral and maxillo-facial surgery (basic medical and dental training) also entails the successful completion of the training course as a dental practitioner referred to in Article 1 of Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners;

    b.

    it shall comprise theoretical and practical instruction;

    c.

    it shall be a full-time course supervised by the competent authorities or bodies pursuant to point 1 of Annex I;

    d.

    it shall be in a university centre, in a teaching hospital or, where appropriate, in a health establishment approved for this purpose by the competent authorities or bodies;

    e.

    it shall involve the personal participation of the doctor training to be a specialist in the activity and in the responsibilities of the establishments concerned.

    2.

    Member States shall make the award of a diploma, certificate or other evidence of formal qualifications in specialized medicine subject to the possession of one of the diplomas, certificates or other evidence of formal qualifications in medicine referred to in Article 23. Issue of the diploma, certificate or other evidence of specialization in dental, oral and maxillo-facial surgery (basic medical and dental training) is also subject to possession of one of the diplomas, certificates or other evidence of qualifications as a dental practitioner referred to in Article 1 of Directive 78/687/EEC.

  70. Annex 1 referred to in Article 24 states:

    Article 24

    Characteristics of the full-time and part-time training of specialists as referred to in Articles 24 (1) (c) and 25.

    1.

    Full-time training of specialists.

    Such training shall be carried out in specific posts recognized by the competent authority.

  71. Dr Lambiris’s work in this country was not training as required by the United Kingdom, nor as required by Article 24, in that it was not a full-time course supervised by the competent authorities in a teaching institution recognised for that purpose. Thus he had not met the United Kingdom’s requirements for acquisition of a specialist qualification. In fact nothing that he had done in the United Kingdom involved training of the type required by Article 8.1.

  72. Article 8.2 requires the United Kingdom to take into account the training periods completed by Dr Lambiris. That training must be of the type required by Article 24 of the Directive. Leaving aside the three month period, all of Dr Lambiris’s "specialist training" was in this country. None of it was training as required by Article 24 or by United Kingdom law. Further, the Greek certificate did not state that it was. It was in this form:

    CERTIFICATE

    We certify hereby that the specialization time for a title of medical speciality to be acquired in Dermatology-Venereology in our country is four (4) years, pursuant to the Presidential Decree 415/94 (Official Gazette A. 236/29-12-94).

    Out of these:

    1 year in Clinical Internal Medicine

    3 years in Clinical Dermatology and Venereology and Outpatient Clinic of Dermatology

    The education program has as follows:

    [There followed a list of subjects dealt with]

    ....

    The title of speciality requires examinations before a Three-member Examining Committee, which is consisted of Professors and Chiefs of the Departments of Hospitals, in order to be awarded.

    This certificate is issued to the medical doctor Mr. LAMBIRIS Athanasios, at his request, to serve for every lawful purpose.

  73. That certificate was amplified in response to an enquiry by the STA. The amplification read:

    In reply to your letter of 21-1-2001 regarding Doctor Athanasios Lambiris, we would inform you that in Greece the medical speciality of Dermatology – Venereology requires four (4) years practice of which one year is in Pathology [General Medical Care] and three years in Clinical Dermatology and Venereology and the Dermatology Outpatient Clinic.

    To acquire this qualification, the above doctor practised in Great Britain at the following hospitals:

    [There followed a list of Dr Lambiris’s appointments]

    ....

    In Greece, the above doctor practised in the Pathology Department of the "VARDEKEIO KE PROIO" Prefectural General Hospital in Syros from 28-12-1993 to 31-10-1994 as a period of Pathology [General Medical Care] practice.

    Our Ministry recognises the education of the doctor in accordance with article 8 of Directive 93/16 EEC and this doctor received the title of specialist after examinations in accordance with our domestic law.

    Consequently the qualification in Dermatology – Venereology of the above doctor is in accordance with articles 7, 24 and 27 of Directive 93/16 EEC.

  74. At no time did the Greek authorities suggest that Dr Lambiris’s experience and training had been such as to comply with that required by the United Kingdom authorities. Further it was plain to the STA that the training relied on took place in the United Kingdom and was not training that complied with Article 24 or that required by United Kingdom authorities. In any case any alleged training did not comply with the periods required in the United Kingdom. Thus the proviso in Article 8.2 was not satisfied.

  75. Article 8.3 required the United Kingdom authorities, "having verified the content and duration of the specialist training of" Dr Lambiris, on the basis of certificates and other evidence of local qualification submitted, to inform him of any additional training required. The specialist training referred to must be of the type required by Article 24. That had to be verified "on the basis of the diplomas, certificates and other evidence of formal qualifications submitted". There was no evidence in any certificate or in anything else which established that Dr Lambiris had carried out "specialist training" being training as required by Article 24. That was understandable in that, leaving aside 3 months, he had never undertaken such training. In those circumstances the answer required by Article 8.3 is that Dr Lambiris had to carry out the full specialist training required by United Kingdom law to become a dermatologist with perhaps an exemption of 3 months. Dermatology-venereology is not a specialism recognised in the United Kingdom. Therefore Article 8 does not apply to any attempt to become recognised for that. It follows that Article 8 could not have helped Dr Lambiris.

  76. At the request of Dr Lambiris, the appeal before the Appeal Panel of the STA was concluded upon written submissions. Dr Lambiris’s submissions were set out in the letter of 25th May 2001 from his solicitors. The reason why the decision does not concentrate on Article 8 can be derived from the way the appeal was argued in that letter.

  77. After setting out a chronology of Dr Lambiris’s training, qualifications and experience, it refers to his rights under discrimination legislation. It then turns to the alleged errors of the STA.

    • First it was said that the STA had misinterpreted the European Specialist Medical Qualifications Order 1995.

    • Second, complaint was made that the STA had failed to take into account Dr Lambiris’s training in Greece and his Greek qualifications.

    There followed allegations based upon Article 8 of the Directive and Article 43 of the Treaty which were dealt with by the Appeal Panel in paragraphs 6, 7 and 8 of the decision. In paragraph 6, the Appeal Panel recorded the conclusion of the STA that Dr Lambiris had not satisfied it that any of the posts held by him in the UK met the specialist training requirement of the Directive and that he had not provided any evidence that his appointments had been subject to educational scrutiny of the Greek or UK authorities. After citing Article 24 of the Directive in paragraph 7, the Appeal Panel concluded in paragraph 8:

    8.

    The STA maintained in its submission, R1-7A, that training programmes and posts in the UK are educationally approved in the grade of Specialist Registrar by the relevant Royal College in collaboration with the Regional Postgraduate Dean under the overall supervision of the Dean. We consider that the STA’s contention regarding training programmes and posts in the UK to be wholly uncontroversial and that it correctly states the position. We further consider that the JCHMT is the "competent authority" for training within the UK required by article 24 of the Directive.

  78. That being so, there could be no dispute that Dr Lambiris could not obtain or acquire a qualification under Article 8 as he had not provided any evidence of the required training in the United Kingdom or in Greece.

  79. In my view the appeal panel were right to reject Dr Lambiris’s Article 8 case upon the basis that they did and there is no need to refer that part of Dr Lambiris’s case back for further consideration.

  80. I agree with Lord Justice Rix that the letter of 25th May did complain that the STA had not decided what was the so-called Article 8.3 "training gap". I also agree that there is no explicit statement by the Appeal Panel as to what it was. However their decision contains findings from which it is clear what is the training gap. They concluded, leaving aside a 3 month period, there was no evidence of any period of specialist training, meaning training as required by the Directive, either in the United Kingdom or in Greece. Thus the additional training was that required in the United Kingdom by a United Kingdom doctor. The gap was the full period, less 3 months. Any other conclusion would place Dr Lambiris in a more advantageous position than a United Kingdom doctor. There is no need for that matter to be referred back for further consideration


Cases

Kingdom of Spain, Case C-232/99; Vlassopoulou [1991] ECR I-2357, Case C- 340/89; Dreessen [2002] ECR I-633, Case C-31/00; Hocsman [2000] ECR I-6623, Case C-238/98; Van Binsbergen [1974] ECR 1299, Case 33/74; Van de Bijl [1989] ECR 3039, Case 130/88; Tennah-Durez, C-110/01; Fitzwilliam, Case C-202/97; Hedley Lomas [1996] ECR I-2553, Case C-5/94

Legislations

European Specialist Medical Qualifications Order 1995: Art.5, Art.7, Art.8, Art.9, Schedule 2

Directive 93/16/EEC: Art.22, Art.24, Annex I

European Communities Act 1972: s.2(2)

Treaty of Rome: Art.43

Representations

Mr. R. McManus QC and Mr. S. Whale (instructed by Davenport Lyons for the Appellant)

Mr. P. Lasok QC (instructed by Carter Lemon Camerons for the Respondent)

Mr. J. Flynn (instructed by Field Fisher Waterhouse for the First Interested Party)

Mr. K. Parker QC and Miss J. Stratford (instructed by the Solicitor for the Department of Health for the Second Interested Party)


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