C-371/97

OPINION OF MR LÉGER — CASE C-371/97

OPINION OF ADVOCATE GENERAL LÉGER delivered on 11 May 2000 *

1. In this case, the Tribunale Civile e Penale 3. The Court is asked to determine whether di Venezia (Civil and Criminal District the solution it adopted in Carbonari can be Court, Venice, Italy) is asking the Court applied to a situation where some of the of Justice to state whether the provisions of applicants are undertaking part-time train- Directives 75/362/EEC 1and 75/363/EEC, 2 ing. as amended by Directive 82/76 EEC, 3 under which trainee specialist doctors are entitled to 'appropriate remuneration' throughout their period of full-time or part-time training, have direct effect.

I — Legal background

2. The Court has already replied in part to A — Community law that question in its judgment in Carbo- nari. 4 In that case, the Court had to decide whether the provisions of the abovemen- tioned directives concerning entitlement to remuneration were sufficiently precise and 1. The relevant provisions of the above- unconditional so as to confer rights directly mentioned directives on the individuals invoking them where training was undertaken full-time.

5. The 'recognition' directive draws a dis- footing within the Community'. 9However, tinction between diplomas, certificates and those 'minimum criteria ... concerning the other evidence of formal qualifications in right to take up specialised training, the specialised medicine depending on whether minimum training period, the method by they are common to all Member States 6or which such training is given and the place only to two or more Member States. 7 where it is to be carried out, as well as the Recognition of the former is automatic if, supervision to which it should be subject ... in accordance with Article 4 of the 'recog- only concern the specialities common to all nition' directive, their holders have under- the Member States or to two or more taken training which meets the minimum Member States'. 10 requirements laid down by the 'coordina- tion' directive. For the latter, Article 6 provides that recognition is automatic between the relevant States, provided that their holders have undertaken training which meets the requirements laid down 8. The 'recognition' and 'coordination' in the 'coordination' directive. directives were amended by Directive 82/76, whose aim, clearly set out in the third recital in the preamble, is to define a new stricter system for part-time training of medical specialists. 11 Directive 82/76 also makes various technical amendments to the 'recognition' and 'coordination' directives, 6. The 'coordination' directive is designed which had become necessary as a result of to coordinate certain laws, regulations and changes to the national legislation of the administrative provisions relating to the Member States and experience gained dur- activities of doctors, while '[leaving] the ing the first years of implementation. 12 Member States freedom of organisation as regards teaching'. 8

10. Under Article 1 of the 'coordination' 13. Article 3 of the 'coordination' direc- directive, Member States must require tive, as amended by Directive 82/76, 18 persons wishing to take up and pursue a allows Member States to permit part-time medical profession to hold a diploma, specialist training. However, that article certificate or other evidence of formal requires certain conditions to be met. Part- qualification in medicine specified in Arti- time training may be permitted only when cle 3 of the 'recognition' directive, thus training on a fuli-time basis would not be guaranteeing that during his complete practicable for well-founded individual training period the individual concerned reasons. 19 Also, such part-time training is has acquired the minimum knowledge laid to be given in accordance with point 2 of down in Article 1(1)(a) to (d) of the Annex I and at a standard qualitatively 'coordination' directive. equivalent to full-time training. 20 Nor is this standard to be impaired, either by the part-time nature of the training or by the practice in parallel of private, remunerated professional activity. 21 Finally, the total duration of specialised training may not be curtailed in those cases where it is orga- 11. Article 2(1) of the 'coordination' direc- nised on a part-time basis. 22 tive, as amended by Directive 82/76, 15 sets out the requirements to be met by training leading to a diploma, certificate or other evidence of formal qualifications in specia- lised medicine. In particular, that training is to be a full-time course supervised by the competent authorities or bodies pursuant to point 1 of the annex. 16 Furthermore, the training must take place in a university 14. Points 1 and 2 of the annex which was centre, in a teaching hospital or, where added to the 'coordination' directive by appropriate, in a health establishment Directive 82/76 .23 provide as follows: approved for this purpose by the competent authorities or bodies. 17

15. Articles 4 and 5 of the 'coordination' Training may be interrupted for reasons directive set the minimum length of the such as military service, secondment, preg- specialist training courses leading to diplo- nancy or sickness. The total duration of the mas, certificates or other evidence of for- training shall not be reduced by reason of mal qualifications referred to in Articles 5 any interruption. and 7 of the 'recognition' directive 24 and which are common to all the Member States or to two or more of them.

2. Part-time training of specialists 16. Finally, Article 16 of Directive 82/76 provides that the Member States are to take the necessary measures to comply with that This training shall meet the same require- directive by 31 December 1982. ments as full-time training, from which it shall differ only in the possibility of limiting participation in medical activities to a 24 — Replaced by Articles 5 and 7 of Directive 93/16.

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22. Article 6(1) states: 'Those admitted to 1. Italian legislation specialised schools within the limits laid down by the programming referred to in Article 2(2), in connection with a full-time engagement for their training, shall receive, throughout the duration of the course, excluding periods when the specialisation 18. The 'recognition' directive and the is suspended, a study bursary which in 'coordination' directive were transposed 1991 shall be ITL 21 500 000. From into Italian domestic law by Law No 217 1 January 1992, this amount shall be of 22 May 1978. 26 increased annually on the basis of the anticipated rate of inflation and shall be 25 — See Case C-277/93 Commission v Spain [1994] ECR I-5515, paragraph 20, and Carbonari, cited above, para- graph 27. 27 — Case 49/86 Commission v Italy [1987] ECR 2995. 26 — Gazzetta Ufficiale della Repubblica Italiana No 146 of 28 — GURI No 191, of 16 August 1991; hereinafter 'Legislative 29 May 1978. Decree No 257'.

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2. Application of the Italian legislation 26. Following a number of procedural matters, which had caused the Corte Suprema di Cassazione (Supreme Court of Cassation) to intervene to resolve an issue as to jurisdiction, the case came before the referring court in its capacity as foro erariale (a court dealing with issues of 24. It is common ground that the provi- public finance). The Corte Suprema di sions of Directive 82/76 obliging Member Cassazione had ruled out in this case the States to grant trainee medical specialists existence of any employment relation- appropriate remuneration were implemen- ship — whether public or private, subor- ted by the Italian Republic by Article 6 of dinate or 'quasi-subordinate' — requiring Legislative Decree No 257 and that that the dispute to be dealt with by another provision has been interpreted as meaning judicial body acting as a labour court. that the study bursary it established does not apply, even after the 1991/92 academic year, to trainee medical specialists regis- tered in the various specialist schools before 1991/92. 29 27. By application dated 14 March 1996, 29 — This was acknowledged by the Italian Government in its the doctors — whose number had written observations. It is also apparent from the third increased from 24 to 636 following the paragraph on page 4 and the second paragraph on page 5 of the French translation or the order for reference. various phases of the procedure —

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tion corresponding to the work per- common to all the Member States or to two formed in the course of their profes- or more of them and are mentioned in sional training? Article 5 or 7 of the 'recognition' directive. However, in the present case, the referring court failed to specify the precise nature of the medical specialties pursued by the applicants.

(2) If the existence of the aforementioned right is recognised, what are the criteria for determining "appropriate remu- neration" with regard to both full-time and part-time training activities?' 33. It is true that the order for reference does not provide the facts which would enable the Court to give a complete answer to the national court. However, the absence of that information does not appear to be such as to preclude the Court from replying to the questions referred for a preliminary I I I— Appraisal ruling. It is sufficient to observe that the 'recognition' and 'coordination' directives list very precisely, for the specialist training courses concerned, both the designations in force in the Member States and the autho- rities or bodies competent to issue the diplomas, certificates and other evidence A — Admissibility of the questions refer- of formal qualifications corresponding to red the specialties in question.

B — The answer

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2. The obligation to provide remuneration States, in respect of doctors liable to benefit for full-time training from the system of mutual recognition, to provide remuneration for periods of train- ing in medical specialties in so far as they fall within the scope of the directive. That obligation is, in itself, unconditional and sufficiently precise.' 40 40. With regard to full-time training, the Court has, following a full and detailed analysis 38 of the relevant Community leg- islation and of the Italian implementing legislation in issue — which is absolutely identical to the national legislation to which the referring court in the present case is subject — already provided the 43. The Court stated that it follows from national courts with all the criteria neces- an analysis of the general scheme of the sary for resolving this type of dispute. 'coordination' and 'recognition' directives and Directive 82/76 that the obligation to provide remuneration for periods of train- ing in medical specialties 'is ... entirely linked to fulfilling the requirements for training in specialised medicine which 41. It is therefore for those courts to apply themselves enable the Member States to to cases brought before them -the rules of undertake the mutual recognition of diplo- Community law as interpreted by the Court mas, certificates and other evidence of in Carbonari. 39 formal qualifications in specialised medi- cine in accordance with the "recognition" directive' 41 and that it is for 'the Member State in which the training in specialised medicine is undertaken [to] guarantee that 42. In that case, the Court ruled that in that training fulfils all the requirements laid principle the obligation to remunerate a down in the "coordination" directive and full-time trainee medical specialist has Directive 82/76 and that the trainee spe- direct effect. cialists receive remuneration.' 42

all the Member States or to two or more The Court found 'that point 1 of the annex Member States and are mentioned in Arti- to the "coordination" directive as amended cle 5 or Article 7 of the "recognition" by Directive 82/76, is explicit and uncondi- directive' 43 and that those articles list, tional in requiring participation in all the 'for the specialist training courses con- medical activities of the department where cerned, both the designations in force in the training is carried out, including on-call the Member States and the competent duties, so that the trainee specialist devotes authorities or bodies.' 44 to this practical and theoretical training all his professional activity throughout the duration of the standard working week and throughout the year.' 46 The Court also observed that, although point 1 'requires that the rules be determined by the compe- tent authorities, the requirements of full- 45. Accordingly, in order to establish whe- time training listed under that point [were] ther that entitlement should be granted to sufficiently precise to enable the national trainee doctors, the Court invited the court to determine which of the applicants referring court to make some investiga- in the main proceedings belonging to the tions. category of trainee specialists fulfilled the requirements of full-time training in spe- cialised medicine in accordance with the "coordination" directive and Directive 82/76 prior to the academic year 1991/92.' 47

46. Firstly, the Court stated that it was for the referring court to ascertain whether the doctors '[belonged] to the category of doctors on one of [the] specialist training courses [listed in Articles 5 and 7 of the "coordination" directive, as amended by Directive 82/76].' 45

the annex thereto, as amended by Directive with the third paragraph of Article 189 of 82/76, are not, in that respect, uncondi­ the EC Treaty'. 50 Therefore, with regard to tional [since] they do not enable the Legislative Decree No 257, the Court invi­ national court to determine the body liable ted the referring court to 'determine to to pay the appropriate remuneration or the what extent all provisions of national law, level thereof.' 48 and more specifically, for the period after their entry into force, the provisions of a law adopted in order to implement Direc­ tive 82/76, can be interpreted after the date of entry into force of those provisions in the light of the wording and the purpose of that directive in order to achieve the result pursued by it.' 51 49. In accordance with the principles which it has identified concerning the task assigned to it by Article 177 of the Treaty, 49 the Court, going beyond the questions formally referred, reminded the referring court that the principle of primacy could overcome the obstacles connected 51. The Court stated that, if the result with the fact that it was not possible to prescribed by the 'coordination' directive apply the principle of direct effect in the could not be achieved by interpreting case in point. The Court also observed that national law in conformity with the direc­ the principle of primacy presupposed com­ tive, the applicants who had suffered a loss pliance with certain requirements. could consider bringing an action for damages against the defaulting State pro­ vided that the conditions for bringing such an action were fulfilled. 52

menting a directive enables the harmful same qualitative and quantitative require- consequences of its belated transposition to ments as those imposed on full-time trainee be remedied, provided that the directive has medical specialists. been properly transposed. However, it is for the national court to ensure that reparation of the loss or damage sustained by the beneficiaries is adequate. Retroactive and proper application in full of the measures implementing the directive will suffice for that purpose unless the beneficiaries estab- lish the existence of complementary loss 55. Point 2 of the annex to the 'coordina- sustained on account of the fact that they tion' directive, as amended by Directive were unable to benefit at the appropriate 82/76, lays down clearly, precisely and time from the financial advantages guaran- unconditionally that such training 'shall teed by the directive with the result that differ [from full-time training] only in the such a loss must also be made good.' 53 possibility of limiting participation in med- ical activities to a period of at least half of that provided for in the second subpara- graph of point 1' 55 and that 'the competent authorities shall ensure that the total dura- tion and quality of part-time training of specialists are not less than those of full- 3. The obligation to provide remuneration time trainees.' 56 for part-time training

53. In my view, the Court's analysis with In other words, part-time training allows regard to medical specialists undertaking doctors to organise their specialised train- full-time training and the conclusions it ing over a longer period. reached in Carbonari are entirely applic- able to medical specialists undertaking part-time training.

58. I therefore propose that the Court should give the following reply to the question referred by the Tribunale Civile e Penale di Venezia:

On a proper construction of Article 2(1)(c) of Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors and point 1 of the annex to that directive, and of Article 3(1) and (2) of Directive 75/363 and point 2 of the annex thereto, as amended by Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363 (subse- quently 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):

— the obligation to provide appropriate remuneration for periods of training in specialised medicine is binding only in respect of the medical specialties which are common to all the Member States or to two or more of them and are

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mentioned in Article 5 or Article 7 of Council Directive 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services;