C-25/02

RINKE

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 6 February 2003 1

I — Introduction I I — Legal framework

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4. Under this Directive, 5application of the 6. Article 34 of Directive 93/16 reads as principle of equal treatment means that follows: there must be no direct or indirect dis- crimination on the grounds of sex — whatever the activity and at all levels of the professional hierarchy — in relation to conditions for access, vocational guidance, vocational training, advanced vocational training and retraining. To that end, ' 1 . Without prejudice to the principle of Member States must take the necessary f u l l - t i m e t r a i n i n g laid d o w n in measures to ensure that any laws, regu- Article 31(1)(b), Member States may auth- lations or administrative provisions orise specific part-time training in general contrary to the principle of equal treatment medical practice in addition to full-time are abolished. training where the following particular conditions are met:

— the total duration of training may not be shortened because it is being fol- lowed on a part-time basis,

2. Part-time training must be of a level of quality equivalent to that of full-time training. It shall lead to a diploma, certifi- cate or other evidence of formal qualifi- 9. Mrs Rinke originally undertook her cation, as referred to in Article 30.' further training to become a specialist in general medical practice in accordance with the Further Training Regulation issued by the Ärztekammer, the defendant in the main proceedings. She was employed full- time from 1988 to 1992 in the general 7. Article 25 of Directive 93/16 allows the medicine department of a hospital. The Member States to authorise part-time train- Ärztekammer recognised two years of that ing as a specialist, under conditions time as full-time training. approved by the competent national auth- orities, when training on a full-time basis would not be practicable for well-founded individual reasons. By contrast with Article 34, Article 25 does not require that a particular period of training be full-time. 10. After having two children Mrs Rinke opted for the significantly shorter 'specific training in general medical practice'. From 1 April 1994 to 31 March 1995 she worked part-time (60% of normal working hours) as a further training assistant at a general medical practice. I I I— Facts and procedure

A — Main proceedings 11. On 4 May 1995 Mrs Rinke applied for a certificate of completion of 'specific training in general medical practice' con- ferring the right to use the title 'general 8. Mrs Rinke, the applicant in the main medical practitioner'. By a notice of 5 May proceedings, holds an officially recognised 1995 the defendant rejected that appli-

14. The Verwaltungsgericht (Adminis- trative Court) dismissed the action. An appeal against that decision was also dis- 12. The applicant, having unsuccessfully missed by a judgment of the relevant court entered an objection against that decision, of 18 February 1999. The court held that b r o u g h t an a c t i o n c l a i m i n g t h a t Paragraph 13(b)(2)(1), in conjunction with Paragraph 13(b)(2)(1) of the Hambur- Paragraph 13(a)(3)(3), of the Hambur- gisches Ärztegesetz infringed the Commu- gisches Ärztegesetz, clearly requires that a nity law prohibition on discrimination in period of at least six months' full-time Council Directive 76/207. She argued that work be undertaken in a general practice as the requirement in the third indent of part of the specific training in general Article 5(1) of Council Directive 86/457 medical practice, and that that requirement on specific training in general medical had not been met by the applicant. In the practice, to the effect that at least part of view of that court, there was no need to the training for general medical practice determine whether the mandatory rule to must be undertaken full-time, is overridden the effect that part of the training be by the basic prohibition on discrimination. completed full-time constituted indirect discrimination on grounds of sex within the meaning of Articles 2(1) and 3(1) of Directive 76/207/EEC on equal treatment. The rule established by the Hamburg legis- lature was in any event justified in Com- munity law terms by Article 34(1) of Directive 93/16/EEC. The third indent of that provision — which is consistent with 13. The Ärztekammer, on the other hand, Article 5(1) of Directive 86/457/EEC — submitted that the full-time training prohibits national rules that permit training requirement was justified on objective in general practice to be undertaken on an grounds. The rule is intended to ensure entirely part-time basis. Following general that the prospective general practitioner is principles, this rule prevails over that in the given an overview of the tasks that fall to Equal Treatment Directive because it is the be performed in general practice and more specific and recent of two rules that becomes acquainted with the full range of are essentially equal in rank. The rule activities to be mastered. If he were to train infringes neither the prohibition on arbit-

15. The Bundesverfassungsgericht (Federal Constitutional Court) overturned that 17. The first area of doubt is whether the decision on an appeal by the applicant in requirement in the third indent of a ruling of 9 January 2001 and remitted the Article 34(1) of Directive 93/16, to the proceedings to the Bundesverwaltungsge- effect that specific training in general medi- richt. It stated that the Bundesverwaltungs- cine — and, in particular, the part under- gericht infringed the applicant's right to a taken at an approved general practice — hearing before the statutory court, which must include some periods of full-time Article 101(1)(2) of the Grundgesetz (Basic training, constitutes indirect discrimination Law) granted to her, because it failed to on grounds of sex within the meaning of refer the question concerning the relation- Directive 76/207. Although there is no ship between the third indent of question that the impossibility of complet- Article 34(1) of Directive 93/16 and Direc- ing the entirety of such training part-time tive 76/207 on equal treatment to the Court affects women more than men, since it is of Justice for a preliminary ruling under the clear from past experience that women take second paragraph of Article 234 EC. It is advantage of the possibility of part-time not clear that the principles of interpre- work in significantly greater numbers than tation relied on in the decision, to the effect men, there is some doubt as to whether the that the more specific and recent rule takes Equal Treatment Directive applies here precedence, also apply in Community law. because — so far as this court is Further, it must also be borne in mind that aware — this is not a question that has the prohibition on discrimination in Com- hitherto been addressed in the case-law of munity law has now acquired the status of the Court of Justice. The Court's case-law a basic right and so prevails over Directive has generally been concerned with dis- 93/16. crimination against part-time workers as compared to full-time workers. However, the issue here is not that certain methods of working have unfavourable legal con- sequences. Rather the legislature is exclud- ing all potential workers from a particular way of working, namely part-time work. The Court of Justice has yet to determine 16. Consequently, the Bundesverwaltungs- whether the Equal Treatment Directive also gericht stayed proceedings and referred a covers a rule of this kind and, to the extent number of questions to the Court for a appropriate, what criteria are to be applied.

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C — Procedure before the Court in treatment is justified by objective factors unrelated to any discrimination on grounds of sex. 7This case-law has now been codi- fied in various directives. 8 Below I will first 21. In the procedure before the Court consider whether the provision at issue in written observations were submitted by this case works to the disadvantage of a Mrs Rinke, the Swedish Government, the higher percentage of women than men. I Council and the Commission. At the hear- will then consider the arguments put for- ing on 12 November 2002 Mrs Rinke, the ward to justify this provision. Council and the Commission presented more detailed argument.

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whether or not the specific rule does in fact 1993-1999 was 35%. In 2000 it was 37%. affect a higher percentage of women than In the other countries of Europe the men. This can be done on the basis of percentage was, on average, about the statistics which provide information on the same. The fact that there are subsequent number of men and women who complete problems as regards continued training is at least part of their training in general also evident from the statistics. Of that medical practice part-time. Only if it is 37% only 62% have the status of specialist, evident that a considerably larger number including that of specialist general medical of women do so can it be asserted that the practitioner, whereas the figure is 76% in exclusion from entirely part-time training is the case of men. In addition, she points out unfavourable to women. that entirely part-time training is possible in respect of specialisations other than general medical practice. Furthermore, it is well-known that more women than men work part-time. This is certainly true of the category of women aged between 28 and 35. Mrs Rinke considers that she has adduced sufficient evidence to indicate that 29. However, Mrs Rinke points out that no there is indirect discrimination. such statistics are available precisely because entirely part-time training is not recognised and therefore no such group exists. She considers that all women and men within the category of general medical practitioner must be compared. In that regard a further distinction should be drawn between male general medical prac- titioners who gained their qualifications on the basis of specialist training and general — Appraisal of indirect discrimination medical practitioners who acquired their right to practise solely on the basis of practical experience before special training in general medical practice was introduced in 1995. No such distinction is drawn in the statistics. Consequently, it is not poss- ible to examine figures based thereon.

10 — See, for example, Jenkins, cited in footnote 7; Case C-158/97 Badeck and Others [2000] ECR I-1875; and order in Case 76/88 R La Terza v Court of Justice [1988] ECR 1741. 11 — T h e history of this provision goes back to Council Directive 75/362/EEC of 16 June 1975 concerning the 35. The figures which Mrs Rinke cites in mutual recognition of diplomas, certificates and other support of this argument and which relate evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of primarily to the total number of women establishment and freedom to provide services (OJ 1975 L 167, p. 1) and Council Directive 75/363/EEC of 16 June among all the general medical practitioners 1975 concerning the coordination of provisions laid d o w n in Germany lack any real conviction in this by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, p. 14). The directives regard because they are unable to establish contain no provisions on the mutual recognition of the diplomas certifying completion of specific training in general medical practice or the criteria which such training

in the Member States. Specific training in general medical midwife, architect, pharmacist and doctor (Text with EEA practice was introduced by Directive 86/457. Under this relevance.) — Statements (OJ 2001 L 206, p. 1). directive, specific part-time training in general medical practice could be undertaken provided that particular 13 — The amendments relate to the reduction in the weekly conditions were met. However, specialisation as a general duration of pan-time training. Whereas under the second medical practitioner differs from other specialisations in indent of Article 34(1) of Directive 93/16 the weekly that this part-time training must comprise a number of duration of part-time training was not to be less than 6 0 % full-time periods. The abovementioned directives have of weekly full-time training, that percentage was reduced been amended on a number of occasions. Therefore, they to 5 0 % by Directive 2001/19. A second amendment relates have been codified in a new directive into which Directive to the minimum period of training in general medical 86/457 has also been incorporated. practice which ís changed from two to three years in the case of full-time training.

14 — Eurostat statistics. See footnote 15. 15 — Inter alia, Labour Force Survey 1998, 1999, 2000, New Cronos database, the Eurostat publication The life of Women and Men in Europe — a Statistical Portrait and 38. It may consequently be concluded that, Employment in Europe 2002 and Employment in Europe 2001, publication of the European Commission, Direc- where a training requirement cannot be torate-General for Employment and Social Affairs. 16 — In relation to men in the age group 25-49 the figure is only satisfied on a part-time basis, the lowering 3.8%. of barriers in terms of access to that

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profession which part-time work offers, women in part-time functions I consider and which is appealing to women, does not untenable the Commission's argument that exist. In other words, part-time work has the developments in the role of men and the effect of lowering barriers precisely for women on the labour market do not auto- women. matically permit the conclusion that women take advantage of the possibility of undertaking part-time training in con- siderably greater numbers.

39. In this case there is a requirement that postgraduate training be undertaken full- time. Therefore, the effect of lowering barriers specific to women disappears. Consequently, this requirement affects 43. The developments to which the Com- women in relatively larger numbers than mission refers may bring about significant men. changes in this relative participation in future, but they do not alter the validity of these statistics.

— Objective justifications

46. In established and extensive case-law the Court has ruled that in cases in which 48. Even if a particular measure affects a the suspicion of indirect discrimination is higher percentage of women than men, or credible, it is for the employer or the vice versa, there is no indirect discrimi- national authorities to disprove that suspi- nation where that measure pursues a legit- cion. 17 The Community legislature codi- imate aim, provided the means of achieving fied this case-law in Directive 97/80. 18 it are necessary and proportionate. Although the case-law and the abovemen- tioned directive are directed at the Member States and individuals, the principle laid down therein is, in my view, entirely applicable in cases such as the present where secondary Community law must be examined in the light of the fundamental — Submissions of the parties principle of equal treatment.

50. The Council and the Commission con- 52. They further contend that, although the sider that, although the rule affects a higher national measure is not at issue in this case, percentage of women than men, it is in any the Member States are also bound by the event objectively justified. They point out principles of Community law. Therefore, that the aim of the directive is to facilitate they must take account of the principles of freedom of movement of doctors and at the non-discrimination and proportionality. same time to ensure a high level of training. Consequently, in connection with part-time Under the directive, the Member States are training in general medical practice they required to recognise diplomas, certificates must keep the length of the full-time and other evidence of formal qualifications. periods as short as possible but long This requires harmonisation of the mini- enough to attain the aim pursued by the mum requirement relating to the duration directive. and content of their training. As regards training in general medical practice, they point out that the specific aim of Article 34 of Directive 93/16 is to ensure that part- time training in general medical practice is of a level of quality equivalent to full-time training. In addition, they note that it is 53. The Council observes that the require- also necessary to safeguard a high level of ment to complete a number of full-time care for patients. They point out that (1) training periods as part of part-time train- the directive in principle permits part-time ing does not go beyond what is necessary. training, (2) provided that the general The need for part-time training is thus condition laid down in Article 34(2) thereof reconciled with the quality requirements is satisfied which (3) is defined in detail in concerning training in general medical Article 34(1), the third indent of which practice. The Commission and the Council relates to the requirement that part-time point to the central role of the general training include a certain number of full- medical practitioner in the health care time training periods. Finally, they note (4) system and the specific requirements placed that the Community legislature must ensure on him. He is increasingly becoming the that this requirement does not go beyond patients' first point of contact and occupies what is strictly necessary. a central position in terms of diagnosis and

54. The Commission doubts that entirely part-time training can meet this need because in this context part-time activity cannot be regarded as equivalent to full- time activity. The Council also points to problems which would arise if training were undertaken on an entirely part-time basis. The Commission and the Council point in particular to the fact that if 56. The Council further observes that a training is part-time the progress of a distinction must be drawn between a part- patient's illness cannot be followed com- time activity and part-time training. The pletely and that the acquisition of experi- latter is of only a limited duration within ence of particular situations, such as emerg- which the necessary experience must be encies and terminal and intensive care, is acquired. The Commission also considers not the same in part-time training and that, in view of the objective, it is reason- workload and availability also differ. By able to require that a certain, limited period way of illustration, they point to the case of of training be undertaken full-time. As a trainee general medical practitioner who regards such a limited period, it is also is available in the morning but not in the easier to find a solution to childcare afternoon. If a patient who paid a visit in problems, for example, than is the case the morning had an adverse reaction to a with entirely full-time training. In addition, prescribed medicine in the afternoon, he the Commission observes that the case-law would be unable to see the doctor who was of the Court allows the Member States a treating him. certain margin of discretion as regards the need to achieve the aim of their social and employment policy, even if such measures affect a greater percentage of women than men. 19 Therefore, the criteria applicable to the Community legislature cannot be stricter. Consequently, the Council was 55. They contend that high-quality training empowered, within its margin of discre- requires full participation in all medical tion, to lay down the requirements govern- activities in all possible situations in order to follow the progress of patients and to gain a complete picture of their state of 19 — In this respect the Commission refers to Case C-444/93 health. However, the problems which Megner and Scheffel v Innungskrankenkasse now Innungskrankenkasse Rheinhessen-Pfalz Vorderpfalz, [1995] could arise if training in general medical ECR I-4741. It also refers to the Court's case-law in which the Council is allowed a broad margin of discretion practice were undertaken on a completely in particular fields, which affects the scope of the judicial part-time basis are averted by requiring a review. In that respect it refers to Case C-280/93 Germany v Council [1994] ECR I-4973, and Case C-84/94 United number of full-time periods, albeit of short Kingdom v Council [1996] ECR I-5755.

57. The fact that the directive lays down 59. Three preliminary remarks should be different rules for the part-time training of made as regards the assessment of whether specialists, in particular by not stipulating or not there is objective justification for the that a component thereof must be full-time, requirement to undertake a component of does not, in their view, justify the con- the training in general medical practice clusion that this should also apply to the full-time which is laid down in the third training of general medical practitioners. indent of Article 34(1) of Directive 93/16. They point to the difference in their roles and to the duration of the training. They consider that a specialist does not have the same central role as a general medical practitioner. He does not have, as part of his specialisation, to provide the same extensive and continuous care as a general 60. Firstly, high-quality training and thor- medical practitioner. Therefore, the train- ough preparation for the future profession ing requirements differ. The training of a are obvious and justified requirements in general medical practitioner is predomi- the light of the increasingly important nantly practical in nature, whereas that of a function which so-called 'frontline' medical specialist is both theoretical and practical. care is performing within the medical Furthermore, training as a specialist lasts chain. They form the basis of Directives three to five years, depending on the 86/457 and 93/16 which also provide for specialisation. Therefore, such training is separate postgraduate specialist training for considerably longer and consequently the general medical practitioners which, when possibility of undertaking the training undertaken full-time, currently lasts three entirely on a part-time basis is also justified years. in that case.

labour market of those affected by it. This Report on specific training in general medi- places stringent requirements on the objec- cal practice provided for by Title IV of tive justifications in terms of necessity and Directive 93/16/EEC, the Commission rec- proportionality. ommended that the requirements applying to part-time training in general medical practice should be brought into line with those applying to other medical specialists'. There has been no complete alignment. However, some experts in the sector itself saw no objection to entirely part-time training in general medical practice, and 62. Thirdly, it should be noted that no neither the Council nor the Commission grounds for the requirement to undertake disputed this fact at the hearing. training on a full-time basis are to be found either in the preamble or the enacting terms of the directive. However, the preamble does contain a general explanation of the desirability of specific, additional training in general medical practice. This expla- nation follows the same lines as the first preliminary remark above (paragraph 60). 64. In view of this history, it must be concluded that the need to include a full- time component in part-time training in general medical practice is not generally recognised. The preamble to Directive 93/16 states no grounds for this need, whilst the preamble to Directive 2001/19 63. It is clear from the history of the contains a recital which points instead to directive that the Commission's original the absence of such a need. No criteria for proposal provided for the possibility of assessing the proportionality of such a entirely part-time training where full-time requirement are to be found anywhere in training was not possible for sound indi- either directive. Moreover, in the light of vidual reasons. This proposal was consist- the available information on the history of ent with the rules applicable to specialists the contested provision, there have to be in a particular field of medicine. However, serious doubts as to whether there was any this proposal was not adopted by the awareness that such a provision could have Council. Certain Member States considered an indirectly discriminatory effect. that the latter requirement was superfluous, whereas others considered that precisely full-time training was necessary. That is why Directive 86/457 and later Directive 93/16 provide for the possibility of part- time training provided that a component thereof is completed full-time. In Directive 93/16, as now amended by Directive 2001/19, this requirement is retained, 65. It is in this context that it is necessary whilst the preamble states that '[i]n its to consider the factual arguments which the

— acquiring sufficient experience of the various situations which may occur in particular in general medical practice; 68. Therefore, as regards both arguments it is difficult to see why they necessitate partial full-time training in respect of general medical practitioners but expressly do not do so in respect of specialists in a particular field. It should be noted inci- dentally that other requirements which are — and the differences between the pro- less restrictive than the unqualified full- fession of general medical practitioner time requirement could be sufficient to gain and that of other medical specialists the necessary experience, such as the provi- and the associated different training sion that, in the case of part-time training, requirements. the timetable must be such that adequate experience is acquired of assessing and monitoring patients over a long period. In brief, in so far as both arguments seek to demonstrate a particular need, they fail to substantiate the proportionality of the full- time requirement. 66. The first argument is not substantively incorrect but the need for doctors to acquire experience of the development of illnesses in their patients and the compli- cations which may arise in that respect applies no less to specialists in other fields 69. The third argument is substantively of medicine, such as internal medicine, incorrect in so far as it is put forward to

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71. The Commission has also contended 73. For the sake of completeness, I will also that the case-law of the Court allows the examine the argument of the Council and Member States a certain margin of dis- the Commission that the provision at issue cretion as regards the need to pursue the is flexible because it does not lay down the aim of their social and employment policy. duration and number of full-time periods and that the Member States themselves must take account of the basic principle of 20 — See, for example, Case 171/88 Rinner-Kühn v FWW Spezial-Cehäudereinigung [1989] ECR 2 7 4 3 ; Case C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297; Case C-1/95 Cerster v Freistaat Bayern [1997] ECR I-5253; and Case C-243/95 Hill and Stapleton v The 21 — See, for example, the recent judgment in Case C-228/99 Revenue Commissioners and Department of Finance Silos e Mangimi Martini v Ministero delle Finanze [2001] (1998] ECR I-3759. ECR I-8401.

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equal treatment and the principle of pro- — Observations of the parties portionality when implementing that provi- sion.

77. Mrs Rinke considers that the require- ment relating to a full-time training period is contrary to primary law and therefore partially void. Consequently, the question B — The second question submitted for a of incompatibility between Directives preliminary ruling 93/16 and 76/207 does not arise. If it does arise, the incompatibility must be resolved in the light of the interests to be protected by the directives. In that respect, Directive 93/16 does not exclude Directive 76/207 75. The second question is made up of two and it would be contrary to the aim of the limbs, namely as to how the incompatibil- latter directive to abandon the interest to be ity of Directive 76/207 on the one hand protected by that directive simply because with Directive 93/16 on the other is to be the provision falls within the scope of resolved, and whether the prohibition of Directive 93/16. indirect discrimination constitutes a basic unwritten right under Community law that overrides any conflicting rule in secondary 22 — OJ 2000 C 364, p. 1. See Articles 20, 21(1) and the third legislation. paragraph of Article 23 of the Charter.

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78. The Swedish Government observes that market. In its established case-law the the provisions of Directive 76/207 are an Court has regarded this principle as a expression of the principle of equal treat- fundamental right. 24 Therefore, it follows ment for men and women and that the that in drafting and developing its second- provision at issue is contrary to that ary law the Community legislature must at principle. all times consider whether that law is consistent with this fundamental legal principle.

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83. On those grounds, the third indent of sion, provide for a full-time period as part Article 34(1) of Directive 93/16 must be of training in general medical practice must declared invalid. Therefore, national rules not be applied. which, in order to implement this provi-

V — Conclusion

84. Having regard to the foregoing, I propose that the Court should answer the questions referred by the Bundesverwaltungsgericht as follows:

(1) The requirement, laid down in the third indent of Article 34(1) of 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, t o the effect that specific training in general medical practice must include a number of full-time training periods constitutes indirect discrimination on grounds of sex within the meaning of Directive 76/207/EEC.