C-69/96

4. They all applied for posts as general medi- cal practitioners under contract to the Unità 2. This reference has been made in the Sanitaria Local (Local Health Unit) N o 58, course of an administrative procedure entail- Palermo, advertised in the vacancy notice ing what is known as an 'extraordinary peti- published in the Gazette Ufficiale detta tion', which is made to the President of the Regione Siciliana N o 59 of 26 November Italian Republic and by which it is possible 1994. to challenge decisions (acts and regulations) of administrative authorities. In that pro- cedure, the Consiglio di Stato must deliver an opinion which, though not binding on the decision-making body, is usually followed by it. 2 5. The list of accepted candidates was approved by the Director of the Local * Original language: Spanish. Health Unit by decision N o 1495 of 4 April 1 — OJ 1986 L 267, p. 26. 1995. It apparently 3 included other doctors 2 — The characteristics of the extraordinary petition, which I who, although not having the certificate shall examine later, make it unique within the range of rem- edies available against administrative acts in the various Member States. Only in the Netherlands legal system has a similar means of redress existed: it was made to the Crown, which made its decision after taking the compulsory, though not binding, opinion of the Raad van Sute; it is now con- 3 — The Consiglio di Suto itself sutes that this is not certain, fined to disputes between public bodies. pointing out that the petitions are not explicit in this respect.

(a) first, and direcdy, the list of accepted candidates, on the ground that, in their submission, the 1991 Legislative Decree, '(1) Must the term "court or tribunal" in without prejudice to acquired rights, Article 177 of the Treaty be interpreted makes a specific training certificate a extensively so as to include not only condition for entry into practice as a judicial bodies specifically defined as general medical practitioner under con- such in national law but also conten- tract to the national health service, as tious administrative proceedings charac- from 1 January 1995; terized not only by impartiality, full exchange of argument and evidence between the parties and so forth but also by the fact that the decision cannot be revoked, amended or challenged by any other administrative or judicial authority? (b) secondly, and indirectly, 4 the Decree of the Minister for Health of 15 December 1994 (which grants the benefit of 'acquired rights' to all doctors entitled to practise on 31 December 1994, even if they did not hold the other certificate in question), which the Director of the (2) D o the words "all those doctors who on Local Health Unit cited as the basis for 31 December 1994 possess such a right" his decision. in Article 7(2) of Directive 86/457/EEC refer to those who had theoretically obtained entitlement to enter into a ser- 4 — The form of procedure employed ¡s well known in many vice relationship (as employees, under legal systems: an administrative act is challenged directly contractual arrangements, as members and, at the same time, the regulation on which it is based is challenged indirectly. of temporary staff, and so forth) with

12. Directive 86/457, however, recognized 9. The Consiglio di Stato expresses doubts that the improvement of training in general as to the interpretation of Directive 86/457. medical practice, and the upgrading of the That directive, however, was expressly status of general medical practitioners that repealed by Council Directive 93/16/EEC of would follow from this, would have to be 5 April 1993, which was intended to facilitate done at different speeds in the various Mem- the free movement of doctors and the mutual ber States, since such a gradual approach was recognition of their diplomas, certificates and other evidence of formal qualifications 5 (hereinafter 'Directive 93/16'). 6 — The preamble to Directive 93/16 states that it is intended, for reasons of clarity and rationality, to consolidate Council Directives 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evi- dence of formal qualifications in medicine, including mea- 5 — OJ 1993 L 165, p. 1. Article 44 of Directive 93/16 provides sures to facilitate tne effective exercise of the rights of estab- that lishment and freedom to provide services (OJ 1975 L 167, T h e Directives listed in Annex III, Part A, are hereby p. 1), and 75/363/EEC of 16 June 1975 concerning the coor- repealed, without prejudice to the obligations of the Member dination of provisions laid down by law, regulation or States concerning the deadlines for transposition set out in administrative action in respect of activities of doctors (OJ Annex III, Part B. 1975 L 167, p. 14), both substantially amended on several References to the said Directives shall be construed as refer- occasions. Besides grouping together those Directives in a ences to this Directive and should be read in accordance with single text, it incorporates therein the aforementioned Direc- the correlation table in Annex IV.* tive 86/457.

14. Articles 30 to 35 of Directive 93/16 gov- ern the various aspects of specific training in general medical practice, the pace of its introduction in the Member States and the However, Member States may exempt from conditions governing the issue and recogni- this condition persons who are undergoing tion of diplomas, certificates and other specific training in general medical practice.

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2. Each Member State shall specify the reply would have to be in the negative: the acquired rights that it recognizes. However, term 'court or tribunal' cannot be inter- it shall recognize the right to exercise the preted as including any form of 'procedure' activities of general medical practitioner at all. Courts and tribunals are, by definition, under its national social security scheme public institutions, or, broadly speaking, without the diploma, certificate or other evi- judicial decision-making bodies which act dence of formal qualification referred to in pursuant to certain procedures. It is obvious, Article 30 as having been acquired by all however, that 'procedures' cannot be identi- those doctors who on 31 December 1994 fied with 'courts or tribunals'. possess such a right pursuant to Articles 1 to 20 and who are established on its territory on that date by virtue of Articles 2 or 9(1).'

19. The question must therefore be reworded or, at least, understood as referring to the entity — implicit in the question — The first question: the Consiglio di Stato; which acts pursuant to the particular pro- the extraordinary petition to the President cedure. of the Republic; and the concept of a court or tribunal within the meaning of Article 177 of the Treaty

22. As the Consiglio di Stato itself states in its order for reference, the extraordinary petition to the President of the Republic, as defined in Italian legislation (Presidential Decree N o 1199 of 1971), and as interpreted (c) The decision meets strictly legal criteria, in successive rulings of the Constitutional independently of any discretionary Court and in administrative case-law, has the appraisal of the public interest. following characteristics:

(d) The decision — formally adopted by (a) It is a contentious procedure which guar- Decree of the President of the Republic antees full exchange of argument and on a proposal from the competent min- evidence between the parties: private ister — is in reality based on the opinion individuals are entitled to see and obtain of the Consiglio di Stato, from which it copies of the file documents and, in par- may depart only if the matter is referred ticular, the report submitted by the Min- to the Council of Ministers. istry to the Consiglio di Stato, for the purpose of presenting their defence.

(e) The Consiglio di Stato is an impartial body whose independence is guaranteed (b) It is a remedy available as an alternative by the Constitution, inter alia because it to, and in parallel with, an application to also discharges judicial functions. the ordinary courts (normally, the regional administrative courts); apart from one or two secondary characteris- tics (different time-limit for instituting proceedings; the necessity or otherwise for all 'internal' administrative remedies to have been exhausted), the conditions (f) A decision given on an extraordinary for commencing the two procedures are petition is binding on the parties and has identical, as is the type of protection practically the same effect as res judicata; sought (petitum: annulment of an admin- moreover, when its tenor entails annul- istrative act which adversely affects a ment of an administrative act of a regula-

7 — Strictly speaking, a decision given on the extraordinary peti- tion does not have the authority of res judicata, a view shared by most Italian courts. Nor is there a special way of enforcing such a decision, so that any refusal by the admin- istration to comply with it would necessitate recourse to the administrative courts. 8 — The Consiglio di Suto says that a possibility of appeal is available to persons who have not been parties to the pro- 25. For, when so acting, the Consiglio di ceedings, but the same can be said essentially of judicial deci- sions as well since res judicata is not effective in relation to Stato does not cease to meet the criteria third parties; the decision on the extraordinary petition does, however, have immediate and significant legal effects in rela- which the aforementioned case-law has tion to third parties, as stated under (f) above. established as characterizing a court or tribu- 9 — In the Italian legal system, there are various types of conten- tious administrative decision, characterized by the impartial- ity and independence of the decision-making body and by full exchange of argument and evidence between the parties, but in all of them, according to the Consiglio di Stato, there is always the possibility, ultimately, of appeal to the (civil or 10 — See, in this connection, Cassarino S.: Manuale di Diritto administrative) courts. In this respect, therefore, the extraor- Processuale Amministrativo, Milan, 1990, p. 52. dinary petition is different from all other applications to the 1 1 — See, inter alia. Case 61/65 Vaassen v Beambtenfonds voor administrative authorities. From the point of view of consti- het Mijnbedrtjf [1966] ECR 261; Casc 14/86 Pretore de Salò tutionality, the justification for this unique example of an v Persons Unknown [1987] ECR 2545; Case 338/85 Pardini administrative decision not subject to judicial review is usu- v Ministero del Commercio con l'Estero [1988] ECR 2041; ally said to be that the parties (not only the plaintiff but also Case C-24/92 Corbiau v Administration des Contributions the defendants) have the option of choosing a judicial rem- [1993] ECR 1-1277; Case C-393/92 Municipality of Almelo edy. So, if an extraordinary petition leads to a decision, it is and Others v Energiebedrijf [1994] ECR 1-1477, paragraph because all the parties have accepted that type of decision 21; and Joined Cases C-74/95 and C-129/95 X [19961 ECR and, therefore, implicitly rqectcd judicial protection. 1-6629.

— the independence and impartiality of its members, whether they form part of the 27. There are two possible approaches to the answer: 12 — In judgment N o 298/1986 of 31 December 1986, the Iulian Constitutional Court ruled on the characteristics of the extraordinary petition: TJnder present legislation, the extraordinary petition to the Head of Sute is a unique and atypical remedy (judgmcnts N o 31/1975 and N o 148/1982) which takes the form of a second-instance contentious pro- cedure resulting in the non-judicial resolution of disputes relating to the validity of acts of the public administration. Its administrative nature is offset by its distinctive charac- (a) the first, which is stricdy formal, is to teristics and clear parallels with and links to judicial pro- ceedings; while its end result, a decision in the form of a deny that status to a body whose func- Presidential Decree, cannot be regarded as equivalent to the tions in a procedure for challenging an acts formally or substantively adopted by the courts (or "parajudiciar acts), nor can it be denned as an act of active administration in so far as à is concerned exclusively with the application of objective law (or, in any event, with sat- isfying a different public interest from those assigned to each administration), and is accordingly different from all 13 — The members of the Italian Consiglio di Suto do not serve ordinary applications to the administrative authorities'. in the advisory and judicial sections simultaneously but There are no italics in the original. route between them.

28. In support of the first approach, I could cite the order made by the Court in Case 31. It is true that the judgment in Neder- 318/85 14 by which the Court of Justice landse Spoorwegen does not contain any declared a reference for a preliminary ruling express reasoning which justifies the accep- from the Commissione Consultiva per le Infrazione Valutarie ('the Consultative Com- mission') inadmissible on the following grounds: '[...] According to Article 177 of 15 — The grounds on which the Court made its decision were as follows: '[...] the Consultative Commission is an agency of the EEC Treaty, a request for a preliminary the Italian Treasury Ministry; [that] its duty is to submit reasoned opinions on the sanctions to be imposed by the ruling may be submitted to the Court of Jus- Treasury Minister on persons infringing the Italian legisla- tice only by a court or tribunal of a Member tion relating to transfers of foreign exchange; [that] it is composed of a judge, as chairman, and several high-ranking State required to give a ruling in proceedings officials; [that] the relevant rules do not require the Consul- tative Commission to conduct hearings where the person which are intended to result in a judicial concerned or his counsel may put forward his point of view; [that] the person concerned has no right to bring a decision. That is not the position in this case matter before the Consultative Commission, which sits since the task of the Consultative Commis- solely at the request of the public authorities who have established that the law has been infringed; and [that] the sion is not to resolve disputes but to submit opinion submitted by the Consultative Commission is not binding on the Minister, who is free to decide whether or an opinion on an administrative procedure.' not to follow it. In addition, it is necessary to point out that the sanctions imposed by the Treasury Minister after con- sulting the Consultative Commission may be challenged by the persons concerned before the ordinary courts and tri- bunals which have unlimited jurisdiction in the matter.' 14 — Greis Unterweger [1986] ECR 955, paragraph 4. 16 — [1973] ECR 1299.

33. The similarities between that precedent and this case are obvious. Both subjectively (b) on the other hand, the extraordinary (the nature and composition of the body) petition, despite its parallels with judicial and objectively (the function performed by proceedings, is nevertheless an adminis- trative challenge procedure in which, for example, the Consiglio di Stato cannot raise issues of unconstitutionality before 17 — Ibidem [1973] (ECR 1318). 18 — The final decision was in fact taken by the competent Min- the Italian Constitutional Court, a pre- ister, who could depart from the opinion of tlie Raad van rogative reserved for the courts and tri- Sute only with the consent of the Minister for Justice or, failing that, of the Prime Minister. bunals of that country.

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36. As regards the second objection, even if it is conceded that the nature of the extraor- dinary petition to the President of the Republic is not strictly judicial from the point of view of domestic law, the character- istics which I have examined above combine to place it within a category very close to that of a judicial procedure. 1 9 It is not just a mere application to the administrative authorities, 20 the final decision in which can itself be challenged before the courts. 38. Underpinning some of the judgments in which the Court of Justice has decided to accept preliminary references from bodies of an uncertain judicial nature has been concern for the effectiveness of Article 177. Thus, in Broekmeulen,21 the Court accepted ques- 37. That latter characteristic prompts me to tions referred for a preliminary ruling by a advocate — albeit with certain reservations Netherlands appeals committee, established — the approach affirming the admissibility within a medical society, •which was respon- sible for adjudicating on the registration of doctors and, consequently, their entitlement 19 — In his article 'Ricorso Straordinario e interpretazione della to pursue their professional activities, within normativa comunitaria' (Giornale di diritto amministrativo. a legal system which, in practice, did not N o 1/1997, p. 69 et seil.), Aldo Sandulli makes it clear that the extraordinary petition fits into the complex system of provide for any effective remedies before the judicial protection available to the addressees of administra- tive acts: a detailed examination of that system reveals what ordinary courts. he considers to be a 'high degree of similarity between the extraordinary petition procedure and the ordinary proce- dures for challenging administrative acts'. 20 — See, at the end of footnote 12, the findings of the Italian Constitutional Court in this respect. 21 — Case 246/80 [1981] ECR 2311, paragraph 8 el seq.

40. In short, despite the weight of the objec- tions that can be made against the admissibil- ity of the reference, I propose that the Court 44. Specifically, the body making the refer- of Justice should accept the reference, in ence asks whether or not the acquired right view of the specific characteristics of the to exercise the activities of general medical body making it and the procedure in which practitioner under a national social security the reference arises. scheme — which, according to the second sentence of Article 36(2), must be recognized as having been acquired by those '[...] who on 31 December 1994 possess such a right pursuant to Articles 1 to 20 and who are established on its territory on that date by 41. It is important to point out that this virtue of Article 2 or 9(1)' — is confined to course is prompted by the special character- those who already had an employment rela- istics of the extraordinary petition which I tionship with the national health service. have already mentioned. It could not there- fore be adopted with regard to all other applications to administrative authorities, the decisions on which are open to judicial review, or to the procedures in which the Consiglio di Stato delivers an opinion as part 45. Above all, I should point out that the of its ordinary advisory functions. facts of the main proceedings relate to purely

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domestic situations. In principle, they are in 48. However, I believe that such a reply no way concerned with the free movement might not dispel all the doubts which the of workers, the right of nationals of one Consiglio di Stato expresses in its reference. I Member State to establish themselves in the therefore consider it more appropriate — as territory of another Member State, the free- suggested by the Commission — to provide dom to provide services or with the recogni- it with the proper interpretation of Article tion of diplomas, formal qualifications and 36(2) of Directive 93/16 in so far as it relates other certificates issued by other Member to doctors who hold certain acquired rights States. which Member States must respect.

47. Taking into account the fact that Direc- tive 93/16 actually seeks to develop the prin- 50. According to Article 36(2) of Directive ciples of the Treaty which relate to those 93/16, as reproduced above, each Member freedoms, 23 the Court in its reply could State is required to guarantee for a certain merely point out to the Consiglio di Stato category of doctors the right to exercise the that Articles 49 (free movement of workers), activities of general medical practitioner 52 and 57 (mutual recognition of diplomas, under its national social security scheme. As certificates and other evidence of formal the wording and meaning of that provision qualifications) do not apply to a situation and the place it occupies in the Directive confined in all respects to a single Member indicate, those doctors can only be those State. 24 who have been recognized by the host State as having acquired a formal qualification, diploma or certificate issued by another State. 22 — The Italian Government stated, in reply to a question put to it by the Court of Justice, that ail the petitioners obtained their qualifications in Italy. 23 — The preamble to Directive 93/16 cites as its legal basis '[...] the Treaty establishing the European Economic Commu- 25 — Coordination of the conditions governing exercise of the nity, and in particular Article 49, Article 57(1) and (2), first medical professions in the various Member Sutes is, in the and third sentences, and Article 66 thereof'. words of Article 57(3) of the Treaty, a condition on which 24 — See, in this connection, the recent judgment in Case the progressive abolition of restrictions on their exercise C-134/95 USSL No 47 di Bietta [1997] ECR 1-195). depends.

(b) they must, on 31 December 1994, be already established in the territory of the 53. O n that premiss, it is irrelevant whether host Member State where their formal those doctors had in fact entered into a ser- qualifications were recognized under vice relationship with the national social Article 2 26 or Article 9(1) 27 of Directive security scheme or, conversely, were only 93/16. theoretically entitled to enter into such a relationship, the two possibilities referred to in the second question. Either way, Member States must guarantee the rights acquired before 1 January 1995 by doctors who sat- 52. It is clear, then, that Article 36(2) of isfy the two conditions described above in Directive 93/16 is intended to safeguard only such a way as to enable them to practise gen- eral medicine under the national social secu- rity scheme. 26 — Article 2 provides: 'Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifi- cations awarded to nationals of Member States by the other Member States in accordance with Article 23 and which are listed in Article 3, by giving such qualifications, as far as the right to take up and pursue the activities of a doctor is con- cerned, trie same effect in its territory as those which the Member State itself awards.' 27 — Article 9(1) provides: '[...] in the case of nationals of Mem- ber Sutes whose diplomas, certificates and other evidence of formal qualificauons in medicine do not satisfy all the minimum training requirements laid down in Árdele 23, each Member State shall recognize, as being sufficient proof, the diplomas, certificates and other evidence of for- 54. The reference to acquired rights is the mal qualifications in medicine awarded by those Member States when they attest to training which commenced connecting link between the second and before [...] accompanied by a certificate stating that those nationals have effectively and lawfully been engaged in the third questions. In the former, the body activities in question for at least three consecutive years making the reference inquires about the during the five years prior to the date of issue of the cer- tificate.' acquired rights of certain categories of

56. In view of the reply which I propose should be given to the second question, 59. The right to specify the acquired rights, which precludes a restrictive interpretation which the Community provision confers on of the rights of doctors covered by Article each Member State, has therefore only one 36(2) of Directive 93/16, it would not be limitation laid down in Article 36(2) of necessary to answer the third question. Both Directive 93/16. Provided that the substance the Commission and the Italian Government of that limitation is respected, each Member have expressed the same view. State is at liberty to stipulate on whom and under what conditions the acquired right to practise general medicine under its national social security scheme is to be conferred, having regard to the circumstances of each case prior to 1 January 1995. 57. Nevertheless, for the purpose of provid- ing the body making the reference with cri- teria for interpreting the Community provi- sion in question which may be of use to it, I see no reason why the Court should not consider the concept of 'acquired rights' in Article 36 of Directive 93/16, since that is the matter on which the Consiglio di Stato has 60. Accordingly, apart from the obligation doubts. to guarantee the acquired rights of the doc- tors referred to in Article 36(2), Directive 93/16 does not contain any other provision or criterion which limits the right of Mem- ber States to determine who will enjoy the acquired rights referred to in paragraph 1 58. As I have explained, Article 36(1) of and the first sentence of paragraph 2 of Directive 93/16 provides that, from Article 36.

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