Judgment;Summary — ECLI:EU:C:2022:310
Date: 2022-04-28
Language of the case: Spanish
Court formation: Sixth Chamber
Subject matter: Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary C-86/21 – 1 
Case C-86/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
11 February 2021 
Referring court:  
Tribunal Superior de Justicia de Castilla y León (Spain) 
Date of the decision to refer:  
4 February 2021 
Appellant:  
Gerencia Regional de Salud de Castilla y León 
Respondent:  
Delia 
  
Subject matter of the main proceedings 
Public service – Nursing staff – Career development – Length of service – 
Recognition of a period of service in a public hospital in another Member State 
Subject matter and legal basis of the request for a preliminary ruling 
Article 45 TFEU – Free movement of workers – National provision precluding 
recognition of a period of service in a public hospital in another Member State – 
Restrictions on the free movement of workers – Absence of general approval 
criteria for the career systems of staff of the Member States’ health services – 
Article 7 of Regulation (EU) No 492/2011 – Non-discrimination – Article 267 
TFEU 
Questions referred for a preliminary ruling 
1) Do Article 45 TFEU and Article 7 of Regulation No [492]/2011 preclude a 
national provision such as Article 6(2)(c) of Decree 43/2009 of 2 July 2009, 
EN 
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which prohibits the recognition of periods of service in a particular 
occupational category in a public health service of another Member State of 
the European Union? 
2) If the answer to question 1 is affirmative, could the recognition of periods of 
service in the public health system of a Member State be made conditional 
on the prior adoption of general approval criteria for the career systems of 
staff of the health services of Member States of the European Union? 
Provisions of EU law relied on 
Treaty on European Union, Articles 3(2), 26(2) and 45. 
Treaty on the Functioning of the European Union, Articles 45, 46 and 
168(7). 
Regulation (EU) No 492/2011 of the European Parliament and of the 
Council of 5 April 2011 on freedom of movement for workers within the 
Union, in particular Article 7 thereof. 
Provisions of national law relied on 
A) State legislation 
General Law 14/1986 on Health (Ley 14/1986, General de Sanidad) of 
25 April 1986 
Article 44: ‘1. All public facilities and services with responsibility for 
providing healthcare shall form part of the National Health System. 2. The 
National Health System comprises all the health services of the State 
Administration and the health services of the Autonomous Communities as 
provided for herein. 
Law 16/2003 on the cohesion and quality of the National Health System 
(Ley 16/2003 de cohesión y calidad en el Sistema Nacional de Salud) of 
28 May 2003 
Article 43: ‘The guarantee of staff mobility throughout the National Health 
System is one of the essential aspects of its cohesion …’ 
Law 44/2003 regulating the healthcare professions (Ley 44/2003 de 
ordenación de las profesiones sanitarias) of 21 November 2003 
Article 37 (general provisions on professional development and recognition 
thereof): ‘1. The system for recognition of the professional development of 
the healthcare professionals referred to in Articles 6 and 7 hereof is hereby 
established … 3. Professionals who are established or employed in the 
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territory of the State may voluntarily access the professional development 
system.’ 
Article 38: ‘The health authorities shall regulate the recognition of 
professional development in respect of their own centres and establishments, 
in line with the following general principles: a) Recognition shall be divided 
into four grades …. c) To obtain the first grade, it will be necessary to 
provide evidence of five years’ professional experience …’ 
Law 55/2003 on the framework regulations for regulated staff of the health 
services (Ley 55/2003 del Estatuto Marco del personal estatutario de los 
servicios de salud) of 16 December 2003 
Article 40: ‘…3. The Human Resources Committee of the National Health 
System shall set down the general principles and criteria for approval of the 
career systems of the different health services in order to ensure mutual 
recognition of career grades, their effects for professional purposes and the 
free movement of those professionals throughout the National Health 
System …’ 
Article 41: ‘1. The pay scheme for regulated staff is comprised of basic 
remuneration and additional remuneration.’ 
Article 42: ‘1. Basic remuneration consists of: a) The salary ] b) Three-
yearly increments … c) Bonuses.’ 
Article 43 (Additional remuneration): ‘2. … e) Career bonus, intended to 
reward the grade reached in the professional career structure when that 
professional development system was established in the relevant category.’ 
B) Regional legislation 
Decree 43/2009 governing the careers of regulated staff of the Castile and 
Leon Health Service (Decreto 43/2009 por el que se regula la carrera 
profesional del personal estatutario del Servicio de Salud de Castilla y León) 
of 2 July 2009 
Article 6: ‘1. The professional career structure in the Castile and Leon 
Health Service consists of four grades. 2. The following conditions for 
obtaining the first grade in the career structure or for accessing each of the 
higher grades are hereby established: a) The person concerned must have the 
status of permanent regulated staff in the occupational category in which he 
or she is applying for the first or subsequent grades of the relevant career 
mode and must carry out his or her duties in the Castile and Leon Health 
Service. b) An application for the first grade in the career structure or for 
each of the higher grades must be submitted within the time limit and in the 
manner stipulated in the relevant call for applications. c) The person 
concerned must provide evidence, as at the date of each call for applications, 
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of the number of years’ professional experience as a regulated staff member 
in National Health System health centres and institutions completed in each 
of the career modes for obtaining the first grade, in addition to those 
completed for access to higher grades, in accordance with the following 
scale: i. To obtain grade I, it will be necessary to provide evidence of five 
years’ professional experience as a regulated staff member in the National 
Health System in the occupational category from which the person 
concerned is applying to access the relevant career mode’. 
Summary of the facts and procedure in the main proceedings 
1 On 13 October 2017, the decision of the Gerencia Regional de Salud de Castilla y 
León (Regional Health Management Board, Castile and Leon, Spain) of 6 October 
2017, launching an ordinary procedure for long-term interim staff and opening the 
period for submitting applications to access career grade I in respect of the year 
2010 was published in the Boletín Oficial de la Comunidad Autónoma de Castilla 
y León (Official Gazette of the Autonomous Community of Castile and Leon). 
The conditions for submitting an application to obtain that grade included the 
requirement to provide evidence of five years’ professional experience as a 
regulated staff member in the Servicio de Salud de Castilla y León (Castile and 
Leon Health Service) in the category from which access to the relevant career 
mode was sought. 
2 On 26 October 2017, Ms Delia submitted her application to access career grade I 
in the category of nurse, claiming to have 10 years and three months’ prior service 
in that category as at 31 December 2010. That prior service included time spent 
working at the Hospital Santa María, Lisbon, which is part of the Portuguese 
national public service, from 20 November 2000 to 25 July 2007. 
3 Concurrently, Ms Delia lodged an administrative appeal with the Gerencia 
Regional de Salud de Castilla y León against the decision of 6 October 2017, 
arguing that the five years’ professional experience required in the category from 
which the person concerned is seeking to access the relevant career mode should 
be years worked in the Spanish National Health System or in the national health 
services of any of the Member States of the EU, and not only years worked in the 
Castile and Leon Health Service. 
4 The Gerencia Regional de Salud de Castilla y León partially upheld that 
administrative appeal. In that connection, it held that prior service in the Spanish 
National Health System should be counted but not prior service in the Portuguese 
national health service. 
5 Ms Delia brought administrative proceedings against that decision before Juzgado 
de lo Contencioso-Administrativo No 3 de Valladolid (Administrative Court No 3, 
Valladolid, Spain), pleading that her prior service in the Portuguese national 
health service should also be counted. 
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6 By judgment of 16 December 2019, that court upheld the administrative action 
brought by Ms Delia on the grounds that the call for applications breached the 
principle of freedom of movement for workers within the territory of the Union. 
7 The Gerencia Regional de Salud de Castilla y León has appealed against that 
judgment to the Tribunal Superior de Justicia de Castilla y León (High Court of 
Justice of Castile and Leon, Spain). 
Essential arguments of the parties to the main proceedings 
8 Ms Delia submits that the decision of the Gerencia Regional de Salud de Castilla y 
León conflicts with the principle of freedom of movement for workers within the 
territory of the Union and the case-law of the Court of Justice on that principle. 
She further submits that the Gerencia de Salud de las Áreas de León (Leon Area 
Health Management Board), which is part of the Comunidad Autónoma de 
Castilla y León (Autonomous Community of Castile and Leon), recognised, for 
the purpose of three-yearly increments, her prior employment in the Portuguese 
national health service (Hospital de Santa María, Lisbon) from 20 November 2000 
to 21 June 2007 in the category of nurse. 
9 The Gerencia Regional de Salud de Castilla y León contends that its decision is 
completely lawful. It argues that neither Ms Delia’s appeal nor the judgment 
under appeal examine the nature, the legal form or the special features of the 
professional career path as regulated in Spanish law. In addition, the Gerencia 
Regional de Salud de Castilla y León claims that the case-law cited in the 
judgment under appeal refers to other factual circumstances relating to mere 
length of service in employment and does not take into consideration, when 
assessing that experience, the particular objectives of the organisation in which the 
person concerned works. 
Summary of the reasoning in the request for a preliminary ruling 
10 Under Spanish legislation, the career structure of regulated staff is the 
responsibility of the Autonomous Communities, which must comply with the 
general principles and criteria laid down by basic State legislation. The different 
health services of the Autonomous Communities are part of the National Health 
System. In order to make it easier for regulated staff to move between the 
different health services of the Autonomous Communities, the Decision of 
29 January 2007 of the Dirección General de Recursos Humanos y Servicios 
Económicos Presupuestarios (Directorate General of Human Resources and 
Budgetary Economic Services) was adopted, which orders publication of the 
Resolution setting out the general approval criteria for the professional career 
systems of staff in the health services (BOE. No 50 of 27 February). The 
professional career structure does not only involve the performance of work 
(length of service) but also requires that that work be performed in a particular 
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occupational category and in a specific health department focused on the 
objectives of the organisation in which the person concerned is employed. 
11 In accordance with Article 168(7) TFEU, the organisation and delivery of health 
services is the exclusive responsibility of each Member State. A European health 
system does not exist and nor have any general criteria been adopted for the 
approval of the career systems of staff in the health services of the different 
Member States, unlike the situation in the Spanish National Health System. 
12 The Court of Justice has held that, in order to determine whether national 
legislation, such as the legislation at issue in the main proceedings, constitutes a 
restriction within the meaning of Article 45 TFEU, it must be pointed out that all 
of the provisions of the FEU Treaty relating to the freedom of movement for 
persons are intended to facilitate the pursuit by nationals of the Member States of 
occupational activities of all kinds within the territory of the Union, and preclude 
national measures which might place EU nationals at a disadvantage when they 
wish to pursue an economic activity in the territory of another Member State (see, 
inter alia, judgments of 15 December 1995, Bosman, C-415/93, paragraph 94; of 
17 March 2005, Kranemann, C-109/04, paragraph 25; and of 11 January 2007, 
ITC, C-208/05, paragraph 31). The Court has also held that national provisions 
which preclude or deter a national of a Member State from leaving his country of 
origin in order to exercise his right to freedom of movement therefore constitute 
restrictions on that freedom even if they apply without regard to the nationality of 
the workers concerned (see, inter alia, Bosman, paragraph 96; Kranemann, 
paragraph 26l; and ITC, paragraph 33). The Court has further held that a measure 
which constitutes an obstacle to freedom of movement for workers could be 
justified only if it pursued a legitimate aim compatible with the Treaty and were 
justified by pressing reasons of public interest. But even if that were so, 
application of that measure concerned would still have to be such as to ensure 
achievement of the aim in question and not go beyond what is necessary for that 
purpose (see, inter alia, judgment of 31 March 1993, Kraus, C-19/92, 
paragraph 32; and judgments in Bosman, paragraph 104; Kranemann, 
paragraph 33; and ITC, paragraph 37). 
13 In the light of the national legislation and the case-law of the Court set out, 
reasonable doubt exists as to whether Article 45 TFEU and Article 7 of 
Regulation No 492/2011 preclude a national provision such as Article 6(2)(c) of 
Decree 43/2009 of 2 July 2009, in so far as that provision does not enable the 
recognition of periods of service in the occupational category of nurse in a public 
hospital in another Member State. Indeed, that provision could be considered to 
breach the principle of freedom of movement for workers and the principle of 
equal treatment, and also to conceal indirect discrimination. However, on the other 
hand, that provision could also be considered to be based on objective criteria 
which are independent of the nationality of the workers concerned and are 
proportionate to the aim pursued, having regard to the way the professional career 
path is regulated, and taking account of the fact that no approval criteria exist 
between the different health systems of the Member States. 
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14 Contributing to those uncertainties is the existence of Spanish case-law laid down 
by high courts of justice pursuant to which length of service alone is not sufficient 
and the worker must have been employed in a particular occupational category 
and in a specific health department which is part of the National Health System. In 
accordance with that national case-law, it has also be held that, given that the aim 
pursued by the provision is legitimate, there is no indirect discrimination, taking 
into account also the fact that it is not only periods worked in other EU Member 
States which are not counted but also periods worked in Spain in hospitals which 
are not operationally and organically part of the National Health System. Doubts 
also exist as to the lawfulness of the contested decision in so far as Ms Delia’s 
prior service in the Portuguese public health service was recognised for the 
purpose of three-yearly increments, which are part of the basic remuneration 
received, while, on the other hand, that prior service was not recognised for the 
purpose of obtaining the grade which would give her the right to receive 
additional remuneration, the career bonus.