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Case:
R.G.D.I.P. 1999-3, 787 Case Mme Y. Chevrol– Benkeddach
Date:
09 April 1999
Translated by:
Tony Weir
Copyright:
Professor Sir B. S. Markesinis

R.G.D.I.P. 1999-3, 787
Case Mme Y. Chevrol– Benkeddach

9 April 1999

On formal legality:

Given that the decision under attack, that of the disciplinary section of the National Council of Medical Practitioners of 20 March 1996, was substituted for the decision dated 17 December 1995 by the regional medical council of Provence-Alpes Côte d’Azur-Corse, so that it is irrelevant that the latter decision may not have been rendered in the two-month period laid down by article 5 of the decree of 26 October 1948;
Given that article 27 of the decree of 26 October 1948 (No. 48-1671) requires the disciplinary section of the National Council of Medical Practitioners to give its reasons when it decides not to admit an applicant, but that sufficient reasons were given in the decision under attack which rehearsed the provisions of article 5 of the governmental declaration of 19 March 1962 on cultural cooperation between France and Algeria and stated that they do not of themselves provide that subsequent graduates in medicine from an Algerian University are thereby entitled to practise medicine in France or qualified to be inscribed in the Order of Medical Practitioners;

On substantive legality, and the complaint based on the governmental declaration of 19 March 1962 on cultural cooperation between France and Algeria:

Given that in support of her application for inclusion in the Order of Medical Practitioners on the basis of the diploma of doctor of medicine which she received from the University of Algiers in 1969, Mme Chevrol-Benkeddach, a French citizen, invoked article 5 of the governmental declaration of 19 March 1962 on cultural cooperation between France and Algeria which lays down that “The degrees and teaching diplomas awarded either in Algeria or France are fully valid in both countries if the underlying syllabus, tuition and examination are similar.”

Given that under article 55 of the Constitution of 4 October 1958 “As soon as they are published, treaties and agreements properly ratified or homologated take precedence over laws, subject in each case to its observance by the other party thereto”; Given that it is not for the administrative court to decide whether or to what extent non-observance by the other party to a treaty or agreement robs it of the authority accorded to it by the Constitution;

Given that on 2 November 1998 the Minister for Foreign Affairs intimated in writing that while the provisions of article 5 of the declaration regarding cultural cooperation between France and Algeria could be regarded as having been in force at the date of the decision under attack, the condition of reciprocity called for by article 55 of the Constitution was not satisfied, so that the claimant cannot invoke these provisions;

Given that the complainant offers no material in support of her plea that the disciplinary section of the National Council of the Order of Medical Practitioners disregarded the Directive of the Council of the European Communities of 21 December 1988; that the Recommendation of the Council of the European Communities of 21 December 1988 creates no obligations on Member States of which Mme Chevrol-Benkeddach could be the beneficiary;

Given that in the absence of a French state doctorate in medicine or any of the diplomas listed in article L. 356-2 of the Code of Public Health or a special ministerial authorisation for foreign graduates under article L.356 of that Code Mme Chevrol-Benkeddach could not usefully maintain that the disciplinary section was wrong to disregard her abilities and her experience in hospitals and universities;

Given that it follows that Mme Chevrol-Benkeddach cannot maintain that the disciplinary section of the National Council of the Order of Medical Practitioners was wrong to reject her application for membership of the Order…

DECIDES
1. The request of Mme Chevrol-Benkeddach is dismissed….



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