CELEX: 61999CJ0232
Failure by a Member State to fulfil its obligations
Directive 93/16/EEC
Transposition of Articles 8 and 18
Access to additional training for migrant doctors who wish to practise specialised medicine in the host Member State on the basis of a diploma, certificate or other evidence of formal qualifications of specialist doctors which is not the subject of automatic unconditional recognition under that directive
Obligation for migrant doctors in Spain to sit the standard competition for admission to training in specialised medicine
Requirement for affiliation to a public social security body for the settlement of accounts relating to medical services with an insurance body

Grounds
1 By application lodged at the Court Registry on 17 June 1999, the Commission of the European Communities brought an action under Article 226 EC seeking a declaration that, by failing to transpose correctly, within the prescribed time-limit, Article 8 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 (OJ 1993 L 165, p. 1) and by failing to transpose Article 18 of that same directive, the Kingdom of Spain has failed to fulfil its obligations under the provisions of the EC Treaty and of that directive.
Community law
2 Article 8 of Directive 93/16 provides:
1. Nationals of Member States wishing to acquire one of the diplomas, certificates or other evidence of formal qualifications of specialist doctors not referred to in Articles 4 and 6, or which, although referred to in Article 6, are not awarded in the Member State of origin or the Member State from which the foreign national comes, may be required by a host Member State to fulfil the conditions of training laid down in respect of the speciality by its own law, regulation or administrative action.
2. The host Member State shall, however, take into account, in whole or in part, the training periods completed by the nationals referred to in paragraph 1 and attested by the award of a diploma, certificate or other evidence of formal training by the competent authorities of the Member State of origin or the Member State from which the foreign national comes provided such training periods correspond to those required in the host Member State for the specialised training in question.
3. The competent authorities or bodies of the host Member State, having verified the content and duration of the specialist training of the person concerned on the basis of the diplomas, certificates and other evidence of formal qualifications submitted, shall inform him of the period of additional training required and of the fields to be covered by it.
3 Article 18 of that directive provides:
Where registration with a public social security body is required in a host Member State for the settlement with insurance bodies of accounts relating to services rendered to persons insured under social security schemes, that Member State shall exempt nationals of Member States established in another Member State from this requirement, in cases of provision of services entailing travel on the part of the person concerned.
However, the persons concerned shall supply information to this body in advance, or, in urgent cases, subsequently, concerning the services provided.
National legislation
4 Article 8 of Directive 93/16 was transposed into Spanish law by Article 12a of Real Decreto 1691/1989 por el que se regulan el reconocimiento de diplomas, certificados y otros títulos de Médico y de Médico Especialista de los Estados miembros de la Comunidad Economica Europea, el ejercicio efectivo de derecho de establecimiento y la libre prestacíon de servicios (Royal Decree 1691/1989 regulating the recognition of diplomas, certificates and other evidence of formal qualifications in medicine and specialised medicine of the Member States of the European Economic Community, as well as the effective exercise of the right of establishment and freedom to provide services) of 29 December 1989 (BOE No 13 of 15 January 1990, p. 1267, hereinafter Royal Decree 1691/1989), as amended by Real Decreto 2072/1995 of 22 December 1995 (BOE No 20 of 23 January 1996, p. 1962, hereinafter Royal Decree 2072/1995). Article 12a provides as follows:
1. In accordance with the provisions of Article 8 of Directive 93/16, the provisions of this article apply to nationals of Member States who wish to acquire a Spanish qualification in specialised medicine and who present a diploma, certificate or other evidence of formal specialised medical training not mentioned in Annex II to this Royal Decree.
2. The directorate general for scientific research and higher education in the Ministry of Education and Science shall assess the training periods completed by the person concerned with a view to recognising them. Where appropriate, on the advice of the national committee for the specialty in question, it will determine the period of additional training, and the fields to be covered by it, which the person concerned will have to complete in order to obtain the Spanish qualification in specialised medicine.
The training demonstrated by the applicant, whose qualification as a doctor must have been recognised beforehand, shall be evaluated on the basis of its official nature in the Member State of origin and of its correspondence to the content of the training required in Spain for the specialty in question.
3. The period of additional training that the persons concerned may be required to complete shall take place in an accredited training centre for the specialty in question. Except in the case contemplated in paragraph 4 of this article, the persons concerned shall be obliged to request admission to the training in question after complying with the standard procedure, which includes the State examination prescribed in Royal Decree 127/1984 of 11 January 1984, and the other provisions in force, under the same conditions as the other candidates who are subject to that procedure.
4. Where the persons concerned can demonstrate that they passed a national selection test for admission to the training which they completed in the State of origin, they shall be exempt from the examination prescribed in Article 5(1) of Royal Decree 127/1984, cited in the preceding paragraph. In that case, the period of additional training shall take place at the accredited specialist training centre indicated by the international committee referred to in Article 5 of Royal Decree 127/1984, in conformity with the provisions of that decree and its implementing measures.
The pre-litigation procedure
5 By a letter of formal notice sent on 27 December 1990, the Commission initiated an infringement procedure against the Kingdom of Spain for failure to transpose Articles 8, 17 and 23 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 intended to facilitate the effective exercise of the right of establishment and the freedom to provide services (OJ 1975 L 167, p. 1), and for incorrect transposition of Article 14 of the same directive by Royal Decree 1691/1989. Following the reply by the Spanish authorities of 8 April 1991, the Commission, by reasoned opinion notified to them on 17 January 1996, set out a number of complaints relating to Articles 8 and 18 of Directive 93/16, the content of which corresponded to that of Articles 8 and 17 of Directive 75/362.
6 In their response of 25 January 1996 to the reasoned opinion, the Spanish authorities communicated to the Commission Royal Decree 2072/1995, amending Royal Decree 1691/1989, which, they claimed, completed the transposition of Directive 93/16 into Spanish law.
7 Considering that the new Royal Decree had not put an end to the failure to fulfil obligations, the Commission, on 12 February 1997, sent a supplementary letter of formal notice, to which the Spanish Government replied on 4 June 1997. Dissatisfied with that reply, the Commission, on 10 August 1998, sent the Kingdom of Spain a supplementary reasoned opinion. The Spanish Government responded to the supplementary reasoned opinion by letter of 23 November 1998.
The first complaint, alleging incorrect transposition of Article 8 of Directive 93/16
Arguments of the parties
8 In its first complaint, the Commission claims that the Kingdom of Spain has not correctly transposed Article 8 of Directive 93/16 since, in order to gain access to the profession of specialist doctor in Spain, the migrant doctor whose diploma, certificate or other evidence of specialised medical training does not benefit from automatic and unconditional recognition in accordance with Directive 93/16 must take part in the national competition procedure for Medico Interno Residente (Resident Medical Intern, hereinafter MIR).
9 According to the Commission, access to specialised medical training in Spain is subject to success in a national examination which was introduced for the purpose of limiting the quota of specialist doctors and which confers the status of doctor in specialised medical training at an establishment or a health centre approved for the training of specialist doctors.
10 The Commission contends that it is clear from Article 8(3) of Directive 93/16 that the host Member State may not refuse to award a diploma in specialised medicine in cases that are not covered by the system of automatic and unconditional recognition established by that directive. The host Member State may, certainly, after examining the diplomas, certificates and other evidence of formal qualifications that the person concerned obtained in other Member States, require additional training where appropriate. It may not, however, systematically subject access to that training to the condition of success in a State examination such as the MIR competition, which is designed for those wishing to begin training in specialised medicine, whereas the migrant doctors concerned need training posts only in order to undergo that additional training.
11 The Commission states that it has received a large number of complaints, as well as petitions transmitted to it by the European Parliament and the European Ombudsman. Those complaints show that the non-transposition of Article 8 of Directive 93/16 into Spanish law has been regularly and persistently cited by the Spanish authorities as a reason for refusing to consider requests for recognition of diplomas.
12 The Commission contends that Member States may legitimately require success in a competition if that competition is held for the purposes of recruitment. The MIR competition does not, however, function as a method of recruitment, since it does not enable the successful candidate to gain access to a specific position, but to training. The Spanish authorities are therefore not in the situation where they need to limit the number of doctors who undergo specialist training on the ground that they would be required to offer them employment.
13 The Spanish Government claims that Royal Decree 1691/1989, as amended by Royal Decree 2072/1995 (hereinafter Royal Decree 1691/1989 as amended), transposed Article 8 of Directive 93/16 in Spain. Contrary to what is asserted by the Commission, Article 8 of Directive 93/16 does not require the host Member State to guarantee the additional training it considers necessary before awarding a diploma, certificate, or other evidence of a formal qualification in specialised medicine.
14 According to the Spanish Government, the MIR competition is necessary as a result of the situation in Spain, where for historical reasons many doctors wish to gain access to specialised medical training, so that the number of posts available for that purpose is insufficient and the competent authorities must therefore allocate them.
15 The Government stresses that the test in question is not an examination that candidates must pass, but rather a procedure for allocating the limited number of existing posts. A candidate does not pass or fail the MIR competition: posts are allocated in order of merit according to the total marks of each candidate in that competition, on the basis of the preferences stated in the application submitted by the person concerned. That competition thus establishes an objective procedure based on the principles of merit and ability. Merit is determined by evaluating the university education and training in medicine according to a scale, while ability is assessed by a test relating to general knowledge appropriate to the certificate to practise medicine.
16 The Spanish Government also states that participation in the MIR competition is not systematically required since, in particular, Article 12a(4) of Royal Decree 1691/1989 as amended exempts from that competition those candidates who prove that they passed a national selection test for admission to the training which they underwent in their Member State of origin.
17 Acceptance of the maximalist arguments of the Commission would seriously compromise the Spanish system of admission to specialised medical training and would encourage or even incite candidates for training in Spain to undergo training outside the country for a minimal period of time and under the conditions of their choice in order to acquire the right to additional training in Spain, thereby evading the normal requirements for admission to that training. Such a situation must be characterised as evasion of the law.
Findings of the Court
18 Article 8 of Directive 93/16 is part of the framework of the Community legal measures designed to facilitate professional mobility of doctors who are Community nationals and have undergone specialised medical training.
19 As is clear from Article 57(1) of the EC Treaty (now, after amendment, Article 47(1) EC), the purpose of directives such as Directive 93/16 is to make it easier for persons to take up and pursue activities as self-employed persons by establishing rules and common criteria leading to the most extensive mutual recognition possible of diplomas, certificates and other evidence of formal qualifications.
20 Article 8(1) of Directive 93/16 thus provides that the person concerned will receive a new diploma in the host Member State after having, if necessary, undergone additional training. It is on the basis of that diploma that he will subsequently be entitled to practise the medical specialty in question in that State. Article 8(2) requires the host Member State to take into account, when determining what additional training is needed, the relevant professional qualification of the person concerned according to principles analogous to those developed in the case-law of the Court on the mutual recognition of professional qualifications.
21 According to that case-law, the principles of which were set out in the judgment in Case C-340/89 Vlassopoulou [1991] ECR I-2357, paragraph 16, the authorities of a Member State, when considering a request by a national of another Member State for authorisation to exercise a regulated profession, must take into consideration the professional qualification of the person concerned by making a comparison between the qualifications certified by his diplomas, certificates and other formal qualifications and by his relevant professional experience and the professional qualifications required by the national rules for the exercise of the profession in question (see, most recently, Case C-31/00 Dreessen [2002] ECR I-663, paragraph 31).
22 That obligation extends to all diplomas, certificates and other evidence of formal qualifications as well as to the relevant experience of the person concerned, irrespective of whether they were acquired in a Member State or in a third country, and it does not cease to exist as a result of the adoption of directives on the mutual recognition of diplomas (see judgment of 14 September 2000 in Case C-238/98 Hocsman [2000] ECR I-6623, paragraphs 23 and 31).
23 In that context, the principal aim of directives such as Directive 93/16 is to establish a system of automatic and unconditional recognition for a certain number of diplomas, certificates and other forms of evidence of formal qualifications.
24 Thus, with respect to the medical profession, Directive 93/16 provides that each Member State is to recognise the diplomas, certificates and other evidence of formal qualifications awarded to Community nationals by the other Member States in accordance with the conditions laid down in that directive, by giving such qualifications, so far as the right to take up and pursue the activities of doctor is concerned, the same effect in its territory as the diplomas, certificates and other evidence of formal qualifications which it itself awards.
25 As a result of the automatic and unconditional effect of those systems of mutual recognition, and of the fact that they make it possible to know precisely and in advance if a particular diploma gives the right to take up and pursue the corresponding profession in other Member States, those systems are generally more advantageous for the persons concerned than is the application of the principles set out in the case-law referred to in paragraphs 21 and 22 above. Nevertheless, that case-law certainly remains relevant in situations not covered by the directives providing for the mutual recognition of diplomas (see Hocsman, cited above, paragraph 34).
26 It is in this general context that Directive 93/16 distinguishes three situations with respect to the recognition of diplomas, certificates and other evidence of formal qualifications of doctors who are Community nationals and have undergone specialised medical training.
27 The first situation relates to migrant doctors who have a diploma, certificate or other evidence of a formal qualification certifying a medical specialty which is among the specialties common to all the Member States and is listed in Article 5(2) of Directive 93/16. Under Article 4 of that directive, the recognition of such diplomas, certificates and other evidence of formal qualifications is automatic and unconditional in all the Member States.
28 The second situation concerns migrant doctors who hold a diploma, certificate or other evidence of a formal qualification certifying a medical specialty which does not rank among those common to all the Member States but appears in the list of specialties peculiar to one or more Member States contained in Article 7(2) of Directive 93/16. Under Article 6 of that directive, recognition of such diplomas, certificates and other evidence of formal qualifications is automatic and unconditional between the Member States concerned, but only between them.
29 The third situation concerns the migrant doctor who wishes to practise a medical specialty in a Member State and has undergone a course of medical training in another Member State leading to a diploma, certificate or other evidence of a formal qualification that does not provide access to the practise of the medical specialty in question in the first Member State under Article 4 or Article 6 of Directive 93/16. In such a case, Article 8 aims to facilitate the free movement of that doctor by allowing him in the host Member State, and in accordance with its domestic legislation, to complete the training needed to practise that medical specialty.
30 Article 8 of Directive 93/16 thus applies, first, to medical specialties that exist both in the host Member State and in the Member State of origin or the Member State from which the foreign national comes but which, for whatever reason, do not appear in the lists in Articles 5 and 7 of that directive.
31 Secondly, Article 8 of Directive 93/16 applies to specialised training which, in the Member State of origin or the Member State from which the foreign national comes, is not regarded as giving rise to a medical specialty but does give access in that Member State to the pursuit of a medical activity which, in the host Member State, constitutes a medical specialty.
32 Such a situation exists, for example, in the case of cardiology, which, while constituting a medical specialty in most Member States, is in some other Member States considered to be a specialised branch of internal medicine, so that a diploma of specialist doctor in internal medicine - cardiology cannot be the subject of the automatic and unconditional recognition prescribed in Articles 4 and 6 of Directive 93/16 (see, to that effect, Case C-16/99 Erpelding [2000] ECR I-6821, paragraph 27).
33 Thirdly, Article 8 of Directive 93/16 applies where the migrant doctor holds a diploma in respect of a medical specialty for which there is no equivalent in the host Member State, but rather a related specialty, so that the practice of that specialty in the host Member State requires additional prior training.
34 Article 8 of Directive 93/16 must therefore be construed as applying to the situation where a migrant doctor holds a diploma, certificate or other evidence of training in specialised medicine which is not covered by the system of automatic and unconditional recognition established by Directive 93/16 but which makes it possible for that doctor to pursue in the Member State of origin or from which he comes a medical activity that to some extent, albeit not formally, corresponds to the medical specialty he wishes to pursue in the host Member State.
35 The Kingdom of Spain refers to the possibility of abuse of its system of access to specialised medical training if Article 8 of Directive 93/16 were to be construed as also applying to migrant doctors who hold a diploma, certificate or other evidence of specialised medical training which certifies only a very brief period of training and does not provide access to the pursuit of a specialised medical activity in the Member State of origin or from which the foreign national comes. In particular, such an interpretation would have the effect of enabling Spanish doctors to circumvent the MIR competition system by simply undergoing a brief period of training in another Member State.
36 The Commission recognises that the concern to prevent such abuses is legitimate. Nevertheless, it repeats that it is neither necessary nor proportionate to subject to the MIR competition migrant doctors who have undergone full specialised medical training in the Member State of origin or from which they come.
37 In that regard, it is clear from the observations submitted to the Court that the Kingdom of Spain in principle requires all migrant doctors to take part in the MIR competition, just as it does in the case of doctors wishing to undergo training for the first time in order to obtain a diploma, certificate or other evidence of a formal qualification as a specialist doctor. The fact that the Spanish authorities in practice exempt from that competition those who can demonstrate that they have successfully participated in a similar selection procedure in the Member State of origin or from which they come merely confirms the existence of a rule according to which participation in that competition is in principle obligatory for all migrant doctors.
38 Furthermore, the Spanish Government does not contest the Commission's claim that the way in which the MIR competition is organised does not guarantee migrant doctors access to the additional training in the medical specialty in point.
39 Admittedly, in cases where Article 8 of Directive 93/16 applies, the host Member State may in principle make the award of the diploma sought by the migrant doctor subject to completion of additional training. However, paragraph 3 of that article makes it clear that such additional training may relate only to fields which, according to the domestic legislation of the host Member State, are not already covered by diplomas, certificates and other evidence of formal qualifications held by the migrant doctor.
40 The host Member State is thus not free either to include other fields in the additional training it requires of migrant doctors or to subject those doctors to the same conditions of access as apply to a doctor wishing to undergo training for the first time in order to obtain a diploma, certificate or other evidence of a formal qualification in specialised medicine.
41 Accordingly, it must be held that the Kingdom of Spain has not correctly transposed Article 8 of Directive 93/16 and that the Commission's first complaint is therefore well founded.
The second complaint, alleging failure to transpose Article 18 of Directive 93/16
Arguments of the parties
42 In its second complaint, the Commission claims that the Kingdom of Spain has failed to transpose Article 18 of Directive 93/16, even though it was necessary to do so.
43 The Commission submits that it is clear from Article 5 of Real Decreto 63/1995 of 20 January 1995 that only services carried out by personnel of the Spanish national health system are paid for by social security, without prejudice to the provisions of international conventions. The Spanish legislation does not specify whether the term international conventions covers the Treaty and, if so, in what way an isolated service provided in Spain by a doctor established in another Member State can be paid for by the Spanish social security institutions. As the legislation now stands, doctors established in other Member States cannot, save in emergencies, provide services in Spain that qualify for reimbursement.
44 The Spanish Government claims that Article 18 of Directive 93/16 was not transposed because, according to the wording of that article, Member States are required to incorporate that provision in their national law only where registration with a public social security body in the host Member State is required in order for it to be possible to settle with an insurance body accounts relating to services rendered to persons insured under social security schemes. In Spain, however, such registration is not required. Consequently, it is not necessary to exempt nationals of other Member States.
45 The Spanish Government also claims that the Commission is confusing the right to provide services which doctors who are nationals of other Member States enjoy in Spain, and the rights of persons affiliated to the Spanish social security scheme. It states that, if the latter use the national health scheme, the treatment they receive will be fully paid for by social security. On the other hand, if they prefer to be treated on the fringe of that scheme, they must bear the cost of the treatment they receive, without any assistance from social security. It is only in the case of urgent medical assistance provided outside the national health scheme that the related costs are reimbursed, after verification that there was not sufficient time for services of that scheme to be used and that the assistance does not constitute an indirect use or abuse of that exception.
Findings of the Court
46 Article 18 of Directive 93/16 forms part of Section B, entitled Special provisions relating to the provision of services, of Chapter VI, entitled Provisions to facilitate the effective exercise of the right of establishment and freedom to provide services in respect of the activities of doctors.
47 The two articles in that section relieve nationals of a Member State, where medical services are provided in another Member State, from certain requirements that might be laid down by that State for doctors who are established there.
48 Thus, Article 17 of Directive 93/16 in principle exempts those professionals from the requirement for an authorisation or membership of, or registration with, a professional organisation or body in order to take up or pursue any activity of a doctor in the Member State where the services are provided.
49 The objective of that article is set out in the 12th recital in the preamble to Directive 93/16, according to which, in the case of provision of services, the requirement of registration with or membership of professional organisations or bodies should be abolished, since it is related to the fixed and permanent nature of the activity pursued in the host country, for such a requirement would undoubtedly constitute an obstacle to the person wishing to provide the service by reason of the temporary nature of his activity.
50 The same recital adds that in such cases, in order to guarantee control over professional discipline, which is the responsibility of those professional organisations or bodies, it should be provided that the person concerned may be required to submit to the competent authority of the host Member State particulars relating to the provision of services.
51 Article 18 of Directive 93/16, for its part, exempts nationals of Member States established in another Member State, in cases of provision of services entailing travel on the part of the person concerned, from another requirement that may be laid down by the national law of the Member State where services are provided, namely registration with a public social security body to enable settlement, in that State, with insurance bodies of accounts relating to services rendered to persons insured under social security schemes.
52 By contrast, neither Article 18 of Directive 93/16 nor any other provision of that directive seeks to eliminate all obstacles that might exist in the Member States relating to the reimbursement of the cost of medical services by an insurance body to which the doctor established in another Member State does not belong.
53 Thus, as the Advocate General has observed at point 101 of her Opinion, that would go beyond the bounds of a directive on the mutual recognition of diplomas and would, in addition, not be consistent with the 22nd recital in the preamble to Directive 93/16, according to which that directive does not affect the power of the Member States to organise their national social security schemes.
54 Any finding of a failure to fulfil the obligation to transpose Article 18 of Directive 93/16 thus presupposes, first, that national law requires registration with a public social security body for settlement with an insurance body of accounts relating to services rendered to persons insured under social security schemes and, second, that the Member State concerned has not exempted from that requirement Community nationals established in another Member State in cases of provision of services entailing travel on the part of the person concerned.
55 In this case, the Commission has not refuted the argument of the Spanish Government that such registration is not necessary in Spain. The argument of the Commission before the Court was essentially centred on the issue of reimbursement by the Spanish health scheme of medical services rendered in Spain by doctors established in another Member State.
56 That issue is to be distinguished from the question as to what registration those doctors are exempted from under Article 18 of Directive 93/16. As found in paragraph 53 of this judgement, it is extraneous to the question of the transposition of Directive 93/16 and, consequently, to this action for failure to transpose a directive correctly.
57 Accordingly, the case for the second complaint has not been made out and that complaint must therefore be rejected.
Decision on costs
Costs
58 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. According to the first subparagraph of Article 69(3), however, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that the parties bear their own costs. Since the Commission and the Kingdom of Spain have been unsuccessful in part, it is appropriate to order the parties to bear their own costs.
Operative part
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1. Declares that, by failing to transpose, within the prescribed time-limit, Article 8 of Council Directive 96/13/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 Kingdom of Spain has failed to fulfil its obligations under the provisions of that directive;
2. Dismisses the remainder of the application;
3. Orders the Commission of the European Communities and the Kingdom of Spain to bear their own costs.