C-131/97

2. Directive 75/362 ('the "recognition" direc­ 4. Recognition of the former is automatic if, tive') concerns the mutual recognition of in accordance with Article 4 of the 'recogni­ diplomas, certificates and other evidence of tion' directive, their holders have undergone formal qualifications in medicine and includes training that satisfies the minimum conditions measures to facilitate the effective exercise of laid down by the 'coordination' directive. In the case of the latter, Article 6 states that rec­ ognition — provided, however, that the holders can rely on having undergone training * Original language: French. satisfying the requirements laid down by the 1 — Council Directive of 16 June 1975 concerning the mutual rec- ognition of diplomas, certificates and other evidence of formal 'coordination' directive — is automatic qualifications inmedicine, including measures to facilitate the effective exercise of the right of establishment and freedom to between these States. provide services (OJ 1995 L 167, p. 1). 2 — Council Directive of 16 June 1975 concerning the coordina- tion of provisions laid down by law, regulation or administra- tive action in respect of activities of doctors (OJ 1995 L 167, p. 14). 4 — Second recital in the preamble to the 'recognition' directive. 3 — Council Directive of 26 January 1982 (OJ 1982 L 43, p. 21). 5 — First recital in the preamble to the 'coordination' directive.

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' 1. Member States shall ensure that the training 6. These Directives were amended by Direc­ leading to a diploma, certificate or other evi­ 8 tive 82/76, the purpose of which, as clearly dence of formal qualifications in specialised stated in the third recital in the preamble medicine, meets the following requirements thereto, was to define a new, stricter system at least: 9 for part-time training of medical specialists. This Directive also made various technical amendments to the two 1975 Directives, ren­ dered necessary as a result of changes in the domestic legislation of Member States and the experience gained in the first years of applica­ (a) it shall entail the successful completion of 10 tion. six years' study within the framework of the training course referred to in Article 1; 6 — Second recital in the preamble to the 'coordination' directive. 7 — Ibid. 8 — Since the facts of the action, these directives have been repealed and replaced by Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1). 9 — See Articles 9, 10, 12, 13 and 14 of Directive 82/76. (b) it shall comprise theoretical and practical 10 — Ibid. Articles 1 to 8 and 15 which amend inter alia Articles 5 and 7 of the 'Recognition' directive. instruction;

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(c) it shall be a full-time course supervised '1 . Full-time training of specialists by the competent authorities or bodies pursuant to point 1 of the Annex hereto; 11

11. Articles 4 and 5 of the same directive set 15. The relevant Articles of DL No 257 are the minimum lengths of the specialised training as follows: courses leading to diplomas, certificates or other evidence of formal qualifications referred to in Articles 5 and 7 of the 'recognition' directive, which are common to all the Member States or to two or more of them.

'Article 4 — Rights and obligations of trainee medical specialists

12. Lastly, Article 16 of Directive 82/76 states that Member States must take the necessary measures to comply with the directive by 31 December 1982.

1. The full-time training of medical special­ ists shall involve participation in all the med­ ical activities of the department where the The relevant national provisions training is carried out, including on-call duties and operations in the case of surgical disci­ plines as well as the gradual assumption of assistant duties, so that the trainee specialist devotes to this practical and theoretical training all his professional activity throughout the year. 13. The 'recognition' and 'coordination' direc­ tives were implemented by the Italian Republic by Law No 217 of 22 May 1978.

2. Trainee medical specialists shall work as 14. Directive 82/76, however, was not fully assistants as part of their practical specialist transposed into national law by the Italian training. Republic until after the Court's judgment of 12 7 July 1987 in the Commission v Italy case, by Legislative Decree No 257 of 8 August 1991 (hereinafter 'DL No 257'). 13

12 — Case C-49/86 Commission v Italy [1987] ECR 2995. Articles 3. Admission to the school and attendance at 9, 10 and 12 to 15 of Directive 82/76 had not been trans- posed into the Italian legal system within the prescribed specialised medical training courses by the period. person registered shall not constitute an 13 — Gazzetta Ufficiale della Republica Italiana ('GURI') No 191 of 16 August 1991. employment relationship of whatsoever kind.

18. The applicants in the main proceedings are all graduates in medicine and were regis­ tered for the 1990/91 academic year in a spe­ 1. Those admitted to specialised schools ... cialised school within the faculty of medicine concerning a full-time engagement for their of the University of Bologna, in various dis­ training, shall receive throughout the dura­ ciplines such as cardiology, obstetrics, neu­ tion of the course, excluding periods when rology, psychiatry, paediatrics, urology, oph­ the specialisation is suspended, a study bur­ thalmology, occupational medicine and other sary which in 1991 shall be ITL 21 500 000. fields. From 1 January 1992, this amount shall be indexed annually on the basis of the antici­ pated rate of inflation and shall be revised every three years by Decree of the Minister for Health on the basis of the improvement in the minimum wage scale applicable to the contracts of salaried medical staff employed 19. In an application lodged on 30 July 1992 by the national health service.' before the Pretura Circondariale di Bologna (Bologna District Magistrate's Court), Chamber for Labour Disputes, the applicants in the main proceedings stated that, since the 1990/91 academic year, they had been engaged full-time in specialist medical training, for the full week and throughout the year, under the direction and supervision of the authorities governing it without receiving any remunera­ tion. They claimed that under the terms of 16. Lastly, Article 8(2) of the DL states that: Directive 82/76, they had been entitled since 'The provisions hereof shall apply from the 1990 to an 'appropriate remuneration' during beginning of the 1991/92 academic year'. the period of specialised training.

14 22. It is settled case-law that individuals have a right to rely in court on a directive 'Must the provision of Directive 82/76/EEC against a Member State only where the State providing that the training of trainee medical has failed to take the required implementing specialists is to be "subject to appropriate measures or has adopted measures which are remuneration" be interpreted, in so far as no incompatible with a directive. specific provisions have been adopted by the Italian Republic within the prescribed periods, as having direct effect in favour of trainee medical specialists as against the administra­ tive authorities of the Italian Republic, and does it confer on trainee medical specialists the right to appropriate payment in respect of 23. It is apparent from the grounds of the all the training undertaken in the departments order for reference that the applicants in the entrusted with training duties by the State, main proceedings, all doctors holding a with a corresponding obligation on those diploma or certificate allowing them to exer­ administrative authorities, including the Uni­ cise this profession, embarked in 1990 on versity of Bologna, to pay such remunera­ specialised training in various fields, but were tion?' deprived of the benefit of the study bursary introduced by DL No 257 during that training even though they had completed a full-time course supervised by the competent authori­ ties or bodies.

The question submitted by the national court

24. It is common ground that the Italian Republic, at the time of the facts in 1990, had 21. By its question, the national court is not transposed into its domestic legal system seeking to ascertain whether the provisions the provisions of Directive 82/76 allowing on the right to remuneration in the 'coordi­ nation' directive, amended by Directive 82/76, are sufficiently precise and unconditional to 14 — Sec, in particular, Case C-148/78 Ratti [1979] ECR 1629, confer rights direcdy on the individuals relying Case C-102/79 Commission v Belgium [1980] ECR 1473 and Joined Cases C-6/90 and 9/90 Franarmeli and Others v on them. In other words, the Court is being Italian Republic [1991] ECR 1-5357, paragraph 11.

31. As far as the persons entitled to these rights are concerned, the Court has already 27. Therefore, it appears that the question as held, in the judgment in Case C-277/93 Com­ 1 to the direct effect of the Community provi­ mission v Spain, 9that only specialties which sions at issue should be restricted to the appear on the lists set out in Article 5 or 7 of period prior to 1991 and, to be more precise, the 'recognition' directive, as amended by to 1990. Directive 82/76, fall within the scope of Article

15 — See point 14 of this Opinion. 17 — Judgment in Case C-8/81 Becker v Finanzamt Münster- 16 — See also the Answer by the Commission of 14 February 1995 Innenstadt [1982] ECR 53, paragraph 25, emphasis added). to the Written Question E-2821/94 by Giovanni Burtone 18 — See, in particular, Francwich, paragraph 12. (OJ 1995 C 139, p. 35). 19 — Case C-277/93 Commisńon v Spain [1994] ECR I-5515.

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2 of the 'coordination' directive, as amended centre and teaching hospital [(b) and (d)], by Directive 82/76. From that, the Court involving the full-time personal participation inferred that the requirement to provide remu­ of the trainee medical specialist in the activity neration for the periods of training in specia­ and in the responsibilities of the establish­ 2 lised medicine laid down in Article 2(1 )(c) of ments concerned [(c) 2and (e)], supervised 20 23 the 'coordination' directive 'applies only to by the competent authorities or bodies [(c)]. medical specialties which are common to all The amendments made by Directive 82/76 the Member States or to two or more Member mainly relate to the obligation to create spe­ States and are mentioned in Article 5 or cific posts and the obligation to provide remu­ 21 Article 7 of the "recognition" directive'. neration for such training.

22 — Before the amendment introduced by Directive 82/76. 20 — Ibid., paragraphs 16 to 19. 23 — Ibid. 21 — Ibid., paragraph 20. 24 — Emphasis added.

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Community. 5Accordingly, the obligation to but offers no further guidance as to how that provide remuneration for specialised training, right is to be determined. the necessary consideration corresponding to the complete commitment of generalists to that training, is likely to ensure quality training throughout the Community, guarantee a cer­ tain equality between members of the profes­ sion, legitimise the principle of mutual recog­ 40. The Commission and the applicants in nition of specialist diplomas introduced by the main proceedings concede this. However, the 1975 directives and thus facilitate the free they maintain that it is possible to determine movement of those providers of services. the content of that right by recourse to national employment legislation.

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the 'coordination' directive does not neces­ remuneration for trainee medical specialists sarily require Member States to make such on the basis of Directive 82/76 alone. training subject to a contract of employment between the trainee medical specialist and his training centre. Member States clearly have that option, but it is by no means obligatory. The reference to work is, to my mind, useful only in determining the period during which the training has to be undertaken and remu­ 46. The provisions of Directive 82/76 con­ neration paid. It means therefore that the cerning the right to appropriate remuneration obligation to provide remuneration covers the are all the less likely to have direct effect in entire period of full-time training. It is only light of the fact that they do not specify the on this point — period of cover of the right to remuneration — that the Member States person or institution liable to pay that remu­ have no discretion. neration.

47. The 'coordination' directive as amended by Directive 82/76 is silent on this subject.

44. As for the rest, Directive 82/76 provides no guidance. So, it does not specify the man­ datory minimum amount of this remunera­ tion nor does it take a 'by reference' approach. In particular, it does not refer to the applica­ tion by analogy of existing criteria used in the 48. Furthermore, Article 2(1 )(d) of the 'coor­ Member State in question to determine the dination' directive states that the training may remuneration of staff carrying out a similar also be in a health establishment approved for activity in the branch of medicine concerned. this purpose by the competent authorities. The Member States therefore have very wide discretion as far as the methods of deter­ mining this right are concerned.

51. It follows that the provisions of Directive 82/76 are not sufficiently precise and uncon­ ditional with regard either to the content of the right to remuneration or to the identity of the guarantor of that right. They are not 54. The applicants in the main proceedings therefore such as to confer directly on doc­ 27 point out that, since 1990, they had been tors undergoing the training specified in the undergoing training meeting the requirements 'coordination' directive the right to obtain a of Directive 82/76 and that, as a consequence, definite remuneration where no implementing by depriving them of any remuneration in measures have been adopted within the time- 1990 and, it appears, throughout subsequent limits. years, the application of the transposition law was contrary to the provisions of the Direc­ tive. In support of their argument they have produced the Decree of the President of the 28 Republic No 162 of 10 March 1982 enti­ tled 'Reorganisation of specialised teaching

26 — See, by analogy, the judgment in Case C-14/83 von Colson 52. However, for the sake of completeness, it and Hamann v Land Nordrhem-Westfalen [1984]ECR 1891, seems to me appropriate to state that the paragraph 24. 27 — I. e. at a time when the Italian Republic was not granting obligation imposed on a Member State by any mandatory remuneration to trainee medical specialists. Article 5 of the EC Treaty to transpose the 28 — GURI No 105 of 17 April 1982, ordinary supplement.

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CARBONARI AND OTHERS v UNIVERSITÀ DEGLI STUDI DI BOLOGNA AND OTHERS

55. In any event, it is for the referring court to check that the presentation thus made of the legal and factual situation faced by the applicants in the main proceedings does actu­ ally reflect the true position.

58. It is therefore the responsibility of the national court to interpret and apply its domestic legislation, whether it be the domestic implementation law or other provi­ 56. If such is the case, the national court sions of national law adopted either before or required to interpret and apply its domestic after a directive, in so far as it has discretion under domestic law, in line with the require­ 32 ments of Directive 82/76.

29 — When the oral arguments were heard, the representative of the Italian Government stated that the delay m adopting the implementing legislation in question was due to practical difficulties encountered by the Italian Government in intro- 31 — See, in particular, the judgment in Case C-91/92 Faccini Dori ducing a system of quantitative limits. v Recreb [1994] ECR I-3325, paragraph 26. 30 — Articles 4, 5, 7, 11 and 12. 32 — Ibid.

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Conclusion