C-277/93

With a view to mutual recognition of diplo- More specifically, the Commission alleges mas, certificates and other evidence of formal that, with respect to remuneration for peri- qualifications in specialized medicine, the ods of training for certain medical specialties, coordination directive provides for some Spain has not properly implemented either coordination of the requirements for training Council Directive 75/362/EEC concerning and access to the various medical specialties. the mutual recognition of diplomas, certifi- Article 2 in particular requires minimum cates and other evidence of formal qualifica- standards to be observed, concerning inter tions in medicine, including measures to alia the right to take up specialized training, facilitate the effective exercise of the right of the method by which training is given and establishment and freedom to provide servic- the place where it is to be carried out and es 2 (hereafter 'the recognition directive') or also the supervision to which it should be Council Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in 3 — OJ 1975 L 167, p. 14. 4 — OJ 1982 L 43, p. 21. 5 — It must be borne in mind here that Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certif- * Original language: Italian. icates and other evidence of formal Qualifications (OJ 1993 1 — Boletín Oficial del Estado, 31 January 1984, p. 2524. L 165, p. 1) provided for those directives to be Consolidated 2 — OJ 1975 L 167, p. 1. into a single text.

A third situation, envisaged by Article 8 (also to be found in Chapter IV), concerns those diplomas, certificates and other formal The coordination directive prescribes, in qualifications which do not fall within addition, the minimum length of the special- the abovementioned categories or which, ized training courses common to all the although listed in Article 7, are not awarded Member States (Article 4) and of those com- in the Member State of origin or the Member mon to two or more Member States (Arti- State from which the foreign national comes. cle 5). Article 8 provides that the host Member State may require nationals of other Member States wishing to acquire one of the diplomas or certificates in question 'to fulfil the condi- tions of training laid down in respect of the specialty by its own law, regulation or 3. The recognition directive, for its part, administrative action' (Article 8(1)). The host draws a distinction between the diplomas, Member State is, however, to take into certificates and other formal qualifications in account, in whole or in part, the training specialized medicine common to all Member periods completed by the nationals con- States (Chapter III) and those peculiar to cerned where those periods correspond to two or more Member States (Chapter IV). those required by the host Member State for the specialized training in question (Article 8(2)) and, where that is the case, to require additional training only (Article 8(3)). 6 — I think it may be helpful to set out in full point 1 of the Annex concerned, according to which: 'Full-time training of specialists ... shall be carried out in spe- cific posts recognized by the competent authority. It shall involve participation in all the medical activities of the department where the training is carried out, including on-call duties, so that the trainee specialist devotes to this practical and theoretical training all his professional activity throughout the duration of the standard working week and throughout the year according to provisions agreed by the competent authorities. Accordingly these posts shall be sub- Finally, in the event of justified doubts, Arti- ject to appropriate remuneration. Training may be interrupted for reasons such as military ser- cle 22 of that directive authorizes the host vice, secondment, pregnancy or sickness. The total duration Member State to require of the competent of the training shall not be reduced by reason of any inter- ruption.' authorities of another Member State 'confir-

The alleged failure by Spain to fulfil its obli- The decree in question provides for two sep- gations, while based also on the recognition arate categories of training, as a junior doctor directive, consequently and essentially con- and as a student. The latter category includes cerns the coordination directive alone, as the six specialties Usted in the third para- amended by Directive 82/76/EEC. In the graph of the annex to that decree: stomatol- Commission's opinion, Article 2 of the coor- ogy, hydrology, space medicine, sports and dination directive applies to all diplomas and physical education medicine, forensic medi- certificates in the various Member States, cine and occupational medicine. Such spe- irrespective of whether or not they are listed cialties, which do not require hospital train- in the recognition directive, precisely because ing, are subject to the 'student' system, with the conditions concerned are an inherent fea- the result that not only are the training peri- ture of the formal qualification in question and thus constitute minimum standards in the absence of which (partial) recognition 7 — Boletín Oficial del Estado of 15 January 1990, p. 126. within the meaning of Article 8 would not

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even be possible; I would remind the Court icine, sports and physical education medi- that Article 8 concerns those specialties cine, space medicine, hydrology) do not which are not listed in either Article 5 or appear at all in the directive. Article 7 of the recognition directive.

That is the question which the Court is called upon to settle in order to establish whether or not Spain is required to remuner- ate the periods of training necessary for the specialties at issue; it is a question which Since only stomatology of the six specialties plainly opposes two different and conflicting under discussion is included in the recogni- conceptions as to the overall reasoning tion directive among those common to two behind the system established by the two or more Member States, of which Spain is directives in question in order to facilitate one, the Spanish Government acknowledges freedom of movement for doctors. failure to fulfil its obligations in relation only to specialization in stomatology. Instead, it challenges the alleged requirement to remu- nerate periods of training for the five other specialties, because occupational medicine, while it is listed among the specialties com- mon to two or more Member States (Article 7), is not included with reference to Spain, 8. In support of its own point of view, the and the other four specialties (forensic med- Spanish Government refers to the wording

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of the second recital in the preamble to the paratoires 9 is of no relevance in a case such coordination directive, according to which as this, in which account is rather to be taken 'with a view to mutual recognition of diplo- of the fact that the measure was approved mas, certificates and other evidence of formal with the reasons stated therein. Moreover, qualifications in specialized medicine (...), the recent directive consolidating in a single some coordination of the requirements for text the directives under discussion here has training in specialized medicine seems neces- retained the old wording of the recital in sary; (...) certain minimum criteria should be question. 1 0 laid down for this purpose (...); (...) these cri- teria only concern the specialties common to all the Member States or to two or more Member States'. 8

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10. In that connection, I would point out fulfil 'the conditions of training laid down in that Article 5 of the coordination directive, respect of the specialty by its own law, reg- which sets the various minimum periods for ulation or administrative action', Article 8 of training in the specialties common to two or the recognition directive does not (at least more Member States, does not confine the not expressly) make any reservation as to the requirement of compliance therewith to application of Article 2 of the coordination those States which mutually recognize the directive. specialties in question. O n the contrary, that provision expressly states that it applies to all Member States 'which have laid down provi- sions by law, regulation or administrative action in this field', that is to say, to all States in which the abovementioned specialties exist and are regulated. Yet the Commission 11. To sum up, it does not seem to me that I accepts that the minimum periods so fixed can endorse the conclusions drawn by the are to apply only to those States which Commission from the actual wording of mutually recognize the specialties in ques- Article 2, having regard in particular to the tion and not to all the specialties listed in the absolute clarity of the second recital in the relevant provision which are known to and preamble to the coordination directive. The 'recognized' in the various Member States. " overall rationale behind the system set up by the two directives in question must therefore be taken into consideration.

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12. However, the fact, which is moreover to automatic recognition. Conversely, the self-evident, that coordination depends on Member States are free to regulate access to, recognition is not in itself sufficient to make and the conditions of, specialist training it clear whether the conditions laid down in themselves only when the specialty involved the coordination directive apply to all the does not exist (and is not regulated) in any various existing medical specialties or only to other Member State, that is, only when the those listed in the recognition directive. relevant diploma, certificate or other formal qualification is not awarded in any other Member State.

The purpose of recognition might in fact require all existing specialties to meet the minimum conditions, on the assumption that coordination of minimum conditions merely represents a first step towards recognition and is in any event essential with a view to This is the only interpretation which is con- ensuring the effectiveness of Article 8 of the sistent not only with the letter but also with recognition directive concerning specialties the spirit of the directives in question, as is not expressly referred to therein. That is, confirmed both by Article 5 of the coordina- moreover, the Commission's opinion. tion directive 12 and by the seventh recital , 3 and Article 8 of the recognition directive. Far from establishing a different form of recogni- tion for those formal qualifications which are not expressly referred to in Articles 5 and 7 of the recognition directive, Article 8 con-

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minimum training periods for individual spe- cialties. , 6 Only then would the result be near-automatic recognition, by virtue of compliance with all the minimum criteria established by the coordination directive, even of those diplomas and certificates which are not (yet) listed in the recognition direc- tive (at least not listed with respect to some States), either because they became common to at least two Member States only after the 14. The rationale underlying the system directives in question were adopted or established by the directives at issue is thus because they have not yet been Usted with abundantly clear and logical: all specialties respect to a Member State in which the rele- existing in at least two Member States are vant specialty was regulated only after the subject to mutual recognition and, as a pre- directives were adopted. 1 7 liminary matter therefore, to the provisions of the coordination directive; all specialties existing and regulated in a single Member State are not subject to mutual recognition (by definition, I would add), with the result that the application of the coordination directive to them, while desirable in view of likely developments in this field, 15 cannot be held to be mandatory but merely optional. 15. Nevertheless, it became apparent at the hearing that it is for the Member States to ask for a given specialty to be included in the recognition directive and that, if the argu- 14 — The host Member State's obligation under Article 8(2) and (3) to take into account the training periods completed in the Member Sute of origin or the Member State from which the foreign national comes, provided that such peri- ods correspond to those required in the host Sute, is, there- 16 — In this regard it is difficult to understand, even from the fore, clearly to be interpreted as meaning that the said Sute point of view of pure logic, how a difference in the length must take such training periods into consideration, even of the training period, for the purposes of obtaining the where they relate to a different specialty, provided that the specialty concerned, is less important than the failure to training required to obtain the relevant diploma or certifi- provide remuneration, taking into consideraron the effects cate corresponds in part to that required by the host Mem- that each of those factors will ineviubly produce on the ber Sute in order to obtain a diploma or certificate which is content of such training. not awarded in the Member Sute of origin or the Member

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ment of the Spanish Government were (Community) medical specialist who wishes accepted, the applicability of the coordina- to avail himself of freedom of movement tion directive rules would therefore be left may rely on mutual recognition whenever essentially to the goodwill of the States. In the diploma, certificate or other formal qual- other words, the Member States would thus ification held by him is also awarded in the be authorized to comply with the rules of Member State in which he intends to practise the said directive only in so far as they agree his profession. to the mutual recognition of the diplomas or certificates concerned (which, moreover, is already unquestionably the case with regard to the minimum training periods for special- ties common to two or more Member States 18 ). 16. O n the basis of the foregoing, therefore, I consider that the Spanish Government has failed to fulfil its obligations under both the recognition directive and the coordination directive solely in relation to specialized training in stomatology, in respect of which, That fact, however, cannot alter the terms of as I have said, the Spanish Government does the question. While it is clear that such a not deny being in default. practice may give rise to consequences which are unacceptable and in any case contrary to the letter and spirit of the two directives concerned, it is likewise clear that it is for the O n the other hand, the Commission's allega- Commission to ensure that, in accordance tions with regard to the five other specialties with the rationale of the system previously must be rejected, since occupational medi- described, all the specialties regulated in at cine is not expressly mentioned in the recog- least two Member States are included within nition directive with respect to the State in the ambit of the directives in question (and if question and the other four specialties are necessary to put proposals before the Coun- not even included within the scope of the cil to that effect). That is necessary, more- relevant directives, from which it should fol- over, in order to maintain the effectiveness of low that those specialties are known and reg- the directives and to ensure that every ulated only in Spain.