C-232/99

B — National law I - 4242

III — The pre-litigation procedure · I - 4243

IV — Consideration of the pleas in law put forward by the Commission I-4244

A — The first plea in law: incorrect transposition of Article 8 of Directive

93/16/EEC into national law I-4244

1. Arguments of the parties I-4244

— The examination, on an individual basis, of general medical knowl­ edge as a specialised examination for migrant specialist doctors possibly not covered by Article 8 of Directive 93/16/EEC I-4256

1 — Original language: German.

I - 4238

COMMISSION v SPAIN

— The discriminatory aspects of the structure of the MIR as an infringement of Article 8 of Directive 93/16/EEC I-4257 (c) The award of specialist training posts in specialised medicine I - 4260 (d)The taking into account of selection procedures in the Member State of origin as a possible justification I - 4260 (e) Summary I-4261 B — The second plea in law: failure to transpose Article 18 of Directive 93/16/EEC into national law I-4261 1. Arguments of the parties I-4261 2. Analysis I-4262 V — Costs I-4264 VI — Conclusion I - 4264

I - 4239

OPINION OF MRS STIX-HACKL — CASE C-232/99

II — Legal framework ... in the case of the provision of services, the requirement of registration with, or membership of, professional organisations or bodies, since it is related to the fixed and permanent nature of the activity pursued in the host country, would undoubtedly con­ A — Directive 93/16/EEC stitute an obstacle to the person wishing to provide the service, by reason of the temporary nature of his activity; whereas this requirement should therefore be abol­ 4. The 2nd, 3rd, 12th, 15th and 22nd ished; whereas, however, in this event, recitals are worded as follows: control over professional discipline, which is the responsibility of these professional organisations or bodies, should be guaran­ teed; whereas, to this end, it should be guaranteed; whereas, to this end, it should be provided, subject to the application of '... pursuant to the Treaty, all discrimina­ Article 62 of the Treaty, that the person tory treatment based on nationality with concerned may be required to submit to the regard to establishment and provision of competent authority of the host Member services is prohibited as from the end of the State particulars relating to the provision of transitional period; whereas the principle of services; such treatment based on nationality applies in particular to the grant of any auth­ orisation required to practise as a doctor and also to the registration with, or mem­ bership of, professional organisations or bodies;

... the coordination of the conditions for the pursuit of these activities, as envisaged by this Directive, does not exclude any subsequent coordination;

'Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications in specialised medi­ 2. The host Member State shall, however, cine awarded to nationals of Member take into account, in whole or in part, the States by the other Member States in training periods completed by the nationals accordance with Articles 24, 25, 26, and referred to in paragraph 1 and attested by 29 and which are listed in Article 5, by the award of a diploma, certificate or other giving such qualifications the same effect in evidence of formal training by the compet­ its territory as those which the Member ent authorities of the Member State of State itself awards.' origin or the Member State from which the foreign national comes provided such train­ ing periods correspond to those required in the host Member State for the specialised training in question. 'Each Member State with provisions on this matter laid down by law, regulation or administrative action shall recognise the diplomas, certificates and other evidence of 3. The competent authorities or bodies of formal qualifications in specialised medi­ the host Member State, having verified the cine awarded to nationals of Member content and duration of the specialist

I - 4241

OPINION OF MRS STIX-HACKL — CASE C-232/99

training of the person concerned on the Spanish qualifications in specialised medi­ basis of the diplomas, certificates and other cine to persons who have undertaken evidence of formal qualifications sub­ periods of specialised medical training in mitted, shall inform him of the period of other Member States. additional training required and of the fields to be covered by it.'

4 9. Article 12a of Royal Decree 1691/1989 governs the requirements for awarding

4 — This provision was implemented by Royal Decree 12. The selection procedure is governed by 2072/1995. Royal Decree 127/1984. Essentially, it

I - 4242

COMMISSION v SPAIN

consists of an evaluation of the results scheme if it can be proved that it was not obtained in the candidate's basic medical possible for the services to be rendered by a training and the sitting of a multiple-choice national-health-scheme doctor or hospital, test. The selection procedure bears the provided that there has not been an abuse name used in Spain to denote a Resident of that exception. Medical Intern, that is 'MIR' (hereinafter 'MIR').

I - 4243

OPINION OF MRS STIX-HACKL — CASE C-232/99

17. As early as 1990, while Directive — by failing to transpose Article 18 75/362 was still in force, the Commission of Directive 93/16 into national initiated a pre-litigation procedure against law, the Kingdom of Spain, which, in 1995, led the Spanish Government to insert the current version of Article 12a into the Royal Decree. has failed to fulfil its obligations under that directive;

18. However, the Commission, since it still felt that Directive 75/362 or, following its repeal, Directive 93/16, had not been cor­ (2) order the Kingdom of Spain to pay the rectly transposed into Spanish law, brought costs. these infringement proceedings. Having already invited the Kingdom of Spain, by 'supplementary letter of formal notice', to submit observations, the Commission then sent a 'supplementary reasoned opinion' in which it required the Kingdom of Spain to adopt the necessary measures within two months from the date of the notice. The IV — Consideration of the pleas in law Spanish Government replied by letter of put forward by the Commission 23 November 1998. Since that letter also failed to meet its obligations, the Commis­ sion brought this action, which was regis­ tered at the Court on 17 June 1999.

A — The first plea in law: incorrect trans- position of Article 8 of Directive 93/16/EEC into national law

19. The Commission claims that the Court should:

21. First, to require them to participate in the MIR is unlawful under Directive 93/16 because, under the scheme of the directive, 24. As regards the Spanish Government's specialised training completed in other argument that the purpose of requiring Member States must be recognised. This migrant specialist doctors to undergo the follows from the Court's judgment in MIR is to prevent abuses of the system, the 6 Vlassopoulou. As is clear from its word­ Commission doubts that the procedure ing and purpose, the basic premiss of under Article 8 of Directive 93/16 would Article 8 of Directive 93/16 is that migrant be appropriate for preventing evasion of specialist doctors are entitled to undertake the law. First of all, the Commission states additional training. that access to additional training under Article 8 must be granted only to those persons who have undergone full special­ ised training under the legislation of the Member State of origin. Second, the Com­ mission cites the settled case-law of the Court 7on the possibilities of using Com­ 22. The MIR is an unlawful additional munity law to prevent circumvention of examination, since Article 8(3) of Directive national law and on the extent to which 93/16 only permits the host Member State this is permissible. to evaluate specialised training undertaken in the Member State of origin on the basis of the qualifications submitted and to require, where appropriate, that individuals undertake any additional training which may be necessary as a result. However, it does not authorise the host Member State 25. The Commission also raises objections to verify a person's specialised knowledge. to the structure of the MIR. It claims that the evaluation of basic studies is conducted in accordance with the Spanish syllabus, which is unfair to candidates who com­ pleted their basic medical training in other Member States. In addition, the multiple- 23. As regards the Spanish Government's choice test, which migrant specialist doc­ contention that, for budgetary reasons, tors must pass as part of the MIR, is similar only a limited number of training posts in content to an examination on the sub-

26. The Commission considers, lastly, that the exception contained in Article 12a(4) of the Royal Decree, whereby migrant special­ ist doctors who have already passed a selection test for access to specialised medi­ cal training in their Member State of origin 29. With regard to the limitation of the will not be required to undergo the MIR, is number of training posts in specialised not sufficient to make the Spanish legis­ medicine, the Spanish Government submits lation compatible with Directive 93/16. that Article 8 of Directive 93/16 only Migrant specialist doctors who were entitles migrant specialist doctors to have trained in their Member State of origin, periods of specialised training not under­ without any limitations being placed on taken in Spain evaluated, and to have the access to that training, must still go content and the duration of any additional through the MIR. Nor, in this regard, is it training which they may require deter­ a valid argument to say that in practice the mined. However, the directive does not Spanish authorities give a very wide inter­ require Member States to make available pretation to Article 12a(4) of the Royal for that training an unlimited number of Decree and that, therefore, most migrant places which are not subject to national specialist doctors can avail themselves of selection procedures. the exception, since the Court has repeatedly held 9 that the fact that in administrative practice complies with Community law does not cause binding provisions of national law to cease to be contrary to Community law. 30. In the Spanish Government's sub­ mission, the limitation of training places is in the public interest and is therefore not 8 — In this regard, the Commission refers to a case which has open to challenge under Community law. come to its attention in which a specialist doctor from another Member State, who had over 10 years' professional First, there are budgetary reasons, includ­ experience, was required to undergo the MIR in order to receive additional training in Spain. ing, in particular, the fact that, according to 9 — See Case 168/85 Commission v Italy [1986] ECR 2945. the case-law of the Court, adequate remun-

32. As regards those specialties which are 31. According to the Spanish Government, particularly in demand, the selection pro­ the MIR is simply a selection procedure for cedure for special training places is con­ a limited number of training posts, rather ducted in the same manner among the best than an aptitude test or an entrance exam­ candidates from each round of appli­ ination. Therefore, the requirement that cations, by reference to the marks they migrant specialist doctors must take part in received in the MIR. it does not mean that there it is an additional specialist examination which is not covered by Article 8 of Directive 93/16. It is true that the multiple-choice test includes questions on subjects which are also covered in basic medical training. However, in this regard, the Spanish Gov­ ernment relies here on the distinction 33. In the Spanish Government's opinion, between the notion of an 'examination' the requirement that migrant specialist and that of a 'selection procedure'. There is doctors must take part in the MIR cannot an 'examination' where access to training be waived because it is the only means of posts in specialised medicine is dependant preventing abuses of Community law by upon passing a test; in other words, each candidates who have undertaken their basic candidate who passes the examination is medical training in Spain. The Spanish also entitled to access to additional train­ Government considers that Article 8 of ing. By contrast, there is a 'selection pro­ Directive 93/16 also applies in cases where cedure' where training posts in specialised evidence has been presented of periods of medicine are awarded irrespective of indi­ specialised medical training which were vidual results; in other words, irrespective undertaken in another Member State, and of whether or not the person has passed the which, by themselves, do not count as full examination. Consequently, where the specialised medical training in the Member available posts are awarded each year to State of origin. In the Spanish Govern­ the most suitable candidates in each round ment's opinion, accepting the Commis­ sion's legal argument would mean that doctors who had completed their basic 10 — Case C-277/93 Commission v Spain [1994] ECR I-5515. training in Spain could undergo brief 11 — According to Spanish figures, the latest mini-census periods of specialised training in other revealed that there were four national-health-scheme doctors for every 1 000 citizens. According to recent Member States for the sole purpose of Spanish estimates, there were another 18 056 doctors who obtaining, by means of the route apparently had completed their basic training and were competing for 2 908 specialised training posts. made available to them by Article 8 and by

35. The selection of candidates for addi­ tional training posts in specialised medicine is made on the basis of aptitude and ability. Aptitude and ability are determined by evaluating the results obtained in basic 2. Analysis medical training by reference to a standard scale, and by ascertaining the candidates with the best overall performance in the multiple-choice test. The focus on the state of an individual's specialised medical knowledge serves the public interest in having doctors who are competent in their specialised field and, with respect to the 37. There are two elements to the Com­ quality of the health scheme, constitutes the mission's complaint that the Kingdom of most objective of all selection criteria. Spain failed to transpose Article 8 of Direc­ tive 93/16 correctly into national law. First, the Commission complains in general terms 12 — The Spanish Government cites the case of a Member State that migrant specialist doctors must also where specialised training for a period of only two weeks, participate in the MIR. Second, the Com­ or 100 hours, leads to a qualification which gives the holder access to a period of additional specialised training mission objects to the content of the MIR, which, in Spain, lasts for a minimum of three years. In 1999 and 2000, 80% of candidates applying for training and in particular the fact that, in its view, a posts who stated that they had undertaken periods of person's basic medical knowledge is used as specialised medical training in other Member States were doctors who had undertaken their basic training in Spain. a deciding factor.

38. The assessment of the relevant Spanish legislature provisions from the point of view Community law turns, essentially, on the aim of the provision complained of. 41 . As regards employees and self-em­ Accordingly, it is permissible to set out ployed persons — such as specialist doc­ some general considerations in this regard. tors —, there are regulations of the market which govern the activities of those oper­ ators, and there are regulations of the market which operate at an earlier stage in that they regulate access to the market by reference to certain criteria. In the case of the latter market regulations, which govern access, a distinction can in turn be made — General considerations between quantitative restrictions on access to the market (for example, licences and quota systems), on the one hand, and qualitative restrictions on access to the market, on the other. 39. There is no doubt that, by introducing the MIR, the Kingdom of Spain limited access to specialised medical training. According to the arguments put forward by the Spanish Government, one of the primary aims of that limitation was to regulate the market in specialised medical 42. Qualitative restrictions on access to the activities. market can pursue a variety of aims. This category comprises first and foremost mini­ mum qualifications for market operators, and it is precisely these minimum qualifi­ cations which can be used by Member States — as is demonstrated, in particular, by the extensive case-law of the Court of 40. A priori, the introduction of legislation Justice on this question 14 — to permit to regulate the market must be based on operators from other Member States to reasons of social or economic policy. In principle, it is the Member States them­ 13 selves who make such decisions. How­ 14 — On the question of the requirements relating to medical ever, Member States must frequently qualifications alone, see Case C-168/98 Luxemburg [2000] ECR I-9131; C-238/98 Hocsman [2000] ECR I-6623; Case C-16/99 Erpelding [2000] ECR I-6821; Case C-234/97 Bobadilla [1999] ECR I-4773; Case C-164/94 Aranitis [1996] ECR I-135; Case C-319/92 Salomone Haim [1994] 13 — However, the reasons relied on must be 'for the general ECR I-425; Case C-104/91 Aguirre Borrell and Others good'. Case 33/74 Binsbergen [1974] ECR 1299 was the [1992] ECR I-3003; Case C-58/90 Commission v Italy first case to deal with the question. For a more recent ¡1991] ECR I-4193; Vlassopoulou, cited in footnote 6 example, see, inter alia, Case C-355/98 Commission v above; Case 222/86 Heylens |1987] ECR 4097; and Case Belgium [2000] ECR I-1221. 246/80 Broekmeulen [1981] ECR 2311.

43. The aim of the Community's so-called 15 '(diploma) recognition directives' is to harmonise the powers of Member States to impose on potential market operators from other Member States specific forms of qualitative restriction on access to the 45. The directive regulates the powers of market (minimum training requirements, Member States in relation to the latter type and also, in part, professional integrity), of qualitative restriction (minimum profes­ and to regulate the extent to which they sional requirements for doctors) according may do so. to the following system. First, it lays down a general obligation of mutual recognition of basic medical training (Article 2, in 15 — Directive 93/16, cited in footnote 3 above (doctors), conjunction with Article 3). As regards together with the following (EC/EEC) directives: 64/222, wholesale trade and activities of intermediaries in com­ specialised training, the directive contains merce, industry and small craft industries (JO 1964 56); provisions differentiated according to the 68/364, retail trade (JO 1968 L 260); 68/368 personal services (Restaurants, cafes, taverns and other drinking designations of specialties. First, there is a and eating places) (JO 1968 L 260); 68/366, food manu­ facturing and beverage industries (JO 1968 L 260); list of specialties common to all Member 70/523, wholesale coal trade (JO 1970 L 267); 75/368, various activities (OJ 1975 L 167); 75/369, itinerant States, in other words, to which mutual activities (OJ 1975 L 167); 77/92, insurance agents and recognition is automatically given (Ar­ brokers (OJ 1977 L 26); 82/470, activities of self-employed persons in certain services incidental to transport (OJ 1982 ticles 4 and 5). There follows a list of L 213); 82/489, hairdressers (OJ 1982 L 218); 78/686 and 78/687, dentistry practitioners (OJ 1978 L 233, pp. 10 and specialties which do not exist in all the 21 respectively), also 89/594 (OJ 1989 L 341, p. 19); Member States. Accordingly, those 78/1026 and 78/1027, veterinary practitioners (OJ 1978 L 362) (also 81/1057 (OJ L 385, p. 25) and 89/594 specialties are only given mutual recogni­ (OJ L 341, p. 19)); 80/154 and 80/155, midwives (both OJ L 33, pp. 1 and 8 respectively); 85/384, architects tion by the Member States specifically (OJ L 223, pp. 15); 77/249, lawyers (OJ L 78, p. 17); listed under the specialty designated (Ar­ 89/48, first general diploma-recognition directive (OJ L 19, p. 16); 92/51, second general diploma—recognition direc­ ticles 6 and 7). Those lists include the vast tive (OJ 1992 L 209, p. 25); 1999/42, third general diploma-recognition directive (OJ L 201, p. 77); 85/433, majority of the specialties recognised in the pharmacists (OJ 1985 L 253, p. 37). Member States.

— Whether the requirement, pursuant to Article 12a(3) of the Royal Decree, that migrant specialist doctors must participate — Whether Article 12a(2) of the Royal in the MIR is compatible with Article 8 of Decree is compatible with Article 8 of Directive 93/16/EEC Directive 93/16/EEC

50. Under Article 12a(3) of the Royal 48. As regards the Commission's complaint Decree, before they may undertake any that the Kingdom of Spain failed to trans­ pose Article 8 of Directive 93/16 correctly into national law, it must first of all be 16 — See also the more recent judgments in Hocsman and observed that, on the question of the need Erpelding, cited in footnote 14 above.

I - 4251

OPINION OF MRS STIX-HACKL — CASE C-232/99

55. As far as concerns the specialised medi­ cal fields, listed in Articles 5 and 7 of Directive 93/16, to which automatic recog­ 52. In the light of the observations made nition must be given, Articles 4 and 6 of above concerning the different forms of Directive 93/16 provide that the qualifi­ restriction on access to the market, what is cations from the Member State of origin concerned here is a quantitative restriction must be given 'the same effect' as qualifi­ on access. However, the primary aim of cations awarded in the host Member State. Directive 93/16 is to remove, or limit, Therefore, irrespective of the fact that there qualitative restrictions on access (minimum may, in some cases, be other qualitative 1 training requirements). restrictions on access to the market 7in addition to minimum training require­ ments, it would therefore be proper to consider that, to that extent, the quanti- tative restrictions on access to the market 53. It is therefore necessary to examine which apply generally in the host Member whether Article 8 of Directive 93/16, in State do not fall within the scope of addition to governing that qualitative Directive 93/16. restriction on access, also applies generally to all restrictions on access to the market for migrant specialist doctors, and requires 17 — For example, the restrictions regarding professional integ­ rity or state of health set out in Article 11 et seq. of that they be abolished. In other words, it is Directive 93/16.

I - 4252

COMMISSION v SPAIN

60. During the proceedings, the Commis­ sion and the Spanish Government have

18 — The same does not occur, for example, in the case of Article 2(2) of the so-called Pharmacists Directive, cited in 58. It must therefore be concluded that it is footnote 15 above. That directive contains a provision not possible to deduce from Directive 93/16 regarding 'recognition' of qualifications in relation to quantitative restrictions on access to the market (territorial with the necessary precision and clarity protection for pharmacists).

I - 4253

OPINION OF MRS STIX-HACKL — CASE C-232/99

62. Therefore, the Commission's objec­ tions to the application of the quantitative 65. In that regard, it must be pointed out restriction on access to the market (com­ that the facts giving rise to Case C-202/99 pulsory participation in the MIR) to are indeed comparable to those in this case, migrant specialist doctors can only be in so far as the Commission, here too, has understood to mean that the Commission is claiming that there has been an infringe­ 19 — See, for example, the judgment in Case C-61/90 Commis- ment of the much wider protection sion v Greece [1992] ECR I-2407, paragraph 9. afforded by the said fundamental freedoms. 20 — [2001] ECR I-9319.

I - 4254

COMMISSION v SPAIN

66. At this point however, it must be pointed out expressly that, according to the case-law of the Court, the fundamental freedoms in question may indeed, under certain conditions, preclude the most varied forms of market regulation. 21 In short, (b) The substantive structure of the MIR pursuant to that case-law, Member States

69. There are two reasons why the sub­ 21 — See, inter alia, Case C-190/98 Graf [2000] ECR I-493; Joined Cases C-369/96 and C-376/96 Arblaie and Others stantive structure of the MIR might be [1999] ECR I-8453; Case C-222/95 Parodi [1997] incompatible with Article 8 of Directive ECR I-3899; Case C-272/94 Guiot [1996] ECR I-1905; and Case C-19/92 Kraus [1993] ECR I-1663. 93/16 in so far as it applies without

I - 4255

OPINION OF MRS STIX-HACKL — CASE C-232/99

restriction to migrant specialist doctors. an additional examination, at least not one First, the MIR could entail an individual which tests their general medical knowl­ test of general medical knowledge, which is edge, must therefore be accepted. However, not envisaged by Article 8 of Directive that raises the question whether sitting the 93/16. Second, the link with the examin­ MIR multiple-choice test can actually be ation, on an individual basis, of general considered an 'examination' in that sense. medical knowledge could in the case of migrant specialist doctors amount to unlawful discrimination.

72. First, it should be stated that the distinction between a selection procedure and an examination proposed by the Span­ ish Government sounds somewhat 'tech­ nical' and, accordingly, it appears to offer — The examination, on an individual basis, little assistance, since, generally speaking, it of general medical knowledge as a special­ is quite normal to equate 'passing an ised examination for migrant specialist examination' with 'success on the part of doctors possibly not covered by Article 8 candidates with the best relative results'. of Directive 93/16/EEC

I - 4256

COMMISSION v SPAIN

a prior authorisation procedure for enter­ — The discriminatory aspects of the struc­ ing the market (MIR) which cannot, there­ ture of the MIR as an infringement of fore, in my opinion, be contrary to Article 8 of Directive 93/16/EEC Article 8 of Directive 93/16. Accordingly, the multiple-choice test of an individual's current level of general medical knowledge does not have any value of its own; instead it is part of a procedure within the mech­ anism for quantitatively regulating the 77. As is clear, in particular, from the market. Therefore it is no different, tech­ second recital in the preamble to Directive nically or materially, from an examination, 93/16, the aim of the directive as a whole, except that the test of general medical and therefore of Article 8, is to abolish all knowledge here occurs in a different con- discriminatory treatment with regard to the text. requirements for access to and the exercise of activities in the field of specialised medicine.

79. With regard to the discriminatory qualifications certifying that they have elements in the structure of the MIR, the undertaken full specialist training. Commission claims that the evaluation of results obtained during basic medical train ing is carried out by reference to a criterion which is, essentially, derived from Spain's basic medical training syllabus, and it therefore favours doctors from the host Member State. In this regard, it need merely be observed that such a procedure 81 . It is true that the wording of would undoubtably be incompatible with Article 8(2) of the directive ('training the principle of equal treatment.

In declaration that Article 8 of the directive accordance with Article 8(2) and (3) of the was incorrectly transposed into national directive, such 'specialist training' or 'train law. ing periods' must be attested by the award of a 'diploma, certificate or other evidence of formal training'. Naturally, elements of formal training which do not (yet) entitle doctors to practise professionally may also, The uniform multiple-choice test as a poss in principle, be attested by the award of ible form of discrimination against migrant certificates or other evidence of formal specialist doctors training. Article 5(2) of the directive lists the documents which must be recognised as 'diplomas, certificates and other evidence of formal qualifications' within the mean ing of Article 4. The documents in question relate, however, to full specialist train

I - 4258

COMMISSION v SPAIN

reason why using the same concepts in relatively long practical experience — relation to the minority of specialist medi­ when it comes to obtaining a post to cal fields covered by Article 8 of the direc­ undertake the additional training required tive should also include the certificates or by Article 8(3) of the directive. other evidence of formal training relating to partial specialist medical training.

82. Therefore, from now on I shall assume that Article 8 of Directive 93/16 only 85. To equate fully trained migrant special­ applies to qualifications which attest to full ist doctors to doctors who have only specialist training. undertaken basic training would appear to be open to objection in principle. A dif­ ferent approach would only be possible if Spanish specialist doctors wishing to become qualified in a new specialist field were also required to sit the same multiple- choice test. However, even that interpre­ 83. The MIR applies without distinction to tation would entail an element of discrimi­ three categories of candidate: Spanish doc­ nation, because the Spanish specialist doc­ tors and doctors from other Member States tors would at least already have access to who have undertaken basic training; Span­ the Spanish market in specialist medical ish specialist doctors who wish to train in a practice, whereas the migrant specialist different field of specialised medicine; and, doctors covered by Article 8 are subject to finally, migrant specialist doctors. The fact a total prohibition of access until they have that all those candidates, without excep­ a post to undertake the additional training tion, are required to undergo the MIR they require. could amount to unlawful discrimination under Article 8, in that an essential aspect of the MIR is the verification of the current level of general medical knowledge by means of a standard, wide-ranging and detailed multiple-choice test.

(c) The award of specialist training posts in since, in principle, they already have access specialised medicine to the market in specialist medical practice and merely wish to undertake additional or supplementary specialist training. By contrast, as regards the additional training which migrant specialist doctors require 87. Finally, the Commission submits that before entering the market for the first migrant specialist doctors who have been time, those doctors will always need a awarded a training post through the MIR training post in a particular specialist field. nevertheless have no guarantee that they This is the only means they have of will actually be awarded a post in the completing the 'additional training' in specialist medical field in which they need accordance with Article 8(3), taking into to undertake additional training. This sub­ account the specific qualifications which mission appears to be sharply contradicted they have already obtained in the Member by Article 12a(4) of the Royal Decree, by State of origin. Since the central aim of virtue of which, in exceptional cases, where Article 8 of Directive 93/16 is to make it migrant specialist doctors have already possible to undertake, in Spain, additional undergone a selection procedure in their training leading to the award of the Member State of origin, those doctors will qualifications required to practise in par­ clearly in all probability be offered places ticular specialist fields, a procedure of the to train in their specialist field. Why should kind used by the Kingdom of Spain cannot the Kingdom of Spain not provide the same be compatible with Community law. in the case of migrant specialist doctors who have been successful in the MIR? The Spanish Government, however, did not contest the Commission's submission and expressly acknowledged, in its general description of the MIR, that the award of training posts according to specialties fol­ lows the order of the results of the test. Therefore, for the purposes of these pro­ ceedings, the Commission's submission (d) The taking into account of selection must be taken to be correct. procedures in the Member State of origin as a possible justification

90. In principle, the compulsory partici­ pation of migrant specialist doctors in the B — The second plea in law: failure to MIR is compatible with Article 8 of Direc­ transpose Article 18 of Directive tive 93/16, provided that it forms part of a 93/16/EEC into national law general restriction on access the purpose of which is to regulate quantitatively the national market in specialist medical prac­ tice. The question whether the national rules in question are compatible with 1. Arguments of the parties primary law is not the subject of these proceedings, since the form of order which the Commission seeks is expressly confined to a declaration of infringement of 93. By its second plea in law, the Commis­ Article 8 of Directive 93/16. sion claims that the Kingdom of Spain failed to transpose Article 18 of Directive 93/16 into national law. In response to the Spanish Government's contention that no transposition is necessary since national legislation already exists which fulfils the 91. However, the Kingdom of Spain has requirements of Article 18, the Commis­ failed to transpose Article 8 of Directive sion argues as follows. 93/16 correctly into national law, in that it requires fully trained specialist doctors from other Member States to undergo exactly the same selection procedure as doctors with no specialist training and 94. Under the provisions of Royal Decree specialist doctors who already have access 63/1995 which the Spanish Government to the Spanish market in specialised medi­ relies on in support of its contention the cal practice. services of doctors established in other Member States will not be paid for where those services are provided to persons insured under the national health scheme, except in urgent cases. In the Commission's 92. Furthermore, the Kingdom of Spain has opinion, this means that Article 18 of also failed to transpose Article 8 of Direc­ Directive 93/16 has not been transposed

95. Nor does the reservation in the national legislation in favour of conflicting 'inter­ national conventions' enable the legislation to be regarded as property transposing to Article 18, because it is not clear whether 2. Analysis the term 'international conventions' also includes the EC Treaty. Even if that were the case, however, it would still not be clear how the services of doctors established in other Member States are to be renumerated 98. It is clear that the Commission and the under the national health scheme. Spanish Government have different opinions as to the context of the obligations under Article 18 of Directive 93/16. Con­ sequently, from a legal point of view, the question as to whether there has been an infringement of Article 18 centres on what 96. The Spanish Government is of the type of 'registration' may not be required as opinion that no, or no separate, trans­ a condition for payment of the costs of position of Article 18 of Directive 93/16 treatment for the purposes of the cross- into national law is necessary, since the border services covered by Article 18. Is it applicable national law, set out in Royal 'registration' of doctors under the social Decree 63/1995, complies fully with security scheme in general, or is it, as Article 18. In particular, the Spanish Gov­ distinct from this, registration merely with ernment contends that it is only necessary a 'public social security body'? to transpose the provisions of a directive into national law where the content of that directive is relevant to the national system in question, which, the Kingdom of Spain argues, is not so in this case for the following reasons. 99. The wording of Article 18 differenti­ ates between 'insurance bodies' and 'public social security bodies.' From this it may be inferred, first, that by 'public social security bodies', with which there can be no 97. In Spain, the cost of medical services requirement to register, institutions distinct provided to insured persons is only covered from 'insurance bodies' must be meant. A

100. The 12th recital in the preamble to Directive 93/16, which sets out the aim pursued by Article 18, supports that inter­ pretation. That recital states that regis­ tration with 'professional organisations or bodies' may not be required as a condition 102. Accordingly, it must be concluded for payment for cross-border services pro­ that Article 18 of Directive 93/16 does vided by doctors established in other not preclude legislation which provides Member States because it would constitute that doctors must be registered with the an unreasonable obstacle to the provision national health scheme in order for the cost of temporary services, which would be of medical services to be reimbursed. difficult to justify on the ground of the Therefore, there is no need to consider in purpose underlying the registration require­ any further detail the Commission's claim ment. The recital clearly refers to regis­ that the exception in favour of 'inter­ tration with 'professional organisations or national conventions' is far from clear and, bodies' rather than with the social security consequently, open to objection under scheme or 'insurance bodies.' Community law.

VI — Conclusion

107. In view of the foregoing considerations, I propose that the Court should:

(1) declare that the Kingdom of Spain has failed to fulfil its obligations under Article 8 of Directive 93/16:

— by requiring fully trained specialist doctors from other Member States, who need a specialist training post in order to undertake additional training, to undergo exactly the same selection procedure as doctors who have only completed their basic medical training and as specialist doctors who already have access to the Spanish market in specialist medical practice;

I - 4264

COMMISSION v SPAIN