62002CC0010_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. The present questions of the Puglia Regional Administrative Court are concerned with criteria for the access of doctors to particular functions of general medical care. The referring court doubts whether, when general medical practitioners are selected to practise in the national health service, it is compatible with 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 (2) (hereinafter: Medical Practitioners Directive) for applicants who have acquired a specific training certificate for general medicine and who are also authorised to practise general medicine on the basis of acquired rights to be given preference over other applicants who hold only one of these qualifications.
II – Legal Framework
A – Community law
2. The Medical Practitioners Directive codifies different directives concerning the qualification of doctors, amongst which is Council Directive 86/457/EEC of 15 September 1986 on specific training in general medical practice. (3)
3. Training for general medical practice is regulated in Articles 31, 32 and 34 of the Medical Practitioners Directive (Articles 2, 3 and 5 of Directive 86/457). In particular, Article 31(1)(b) provides for a minimum period of two years’ full-time training. If the training takes place part-time then it is to be correspondingly extended in accordance with Article 34 of the Medical Practitioners Directive.
4. Article 36 of the Medical Practitioners Directive (Article 7 of Directive 86/457) provides:
‘(1) From 1 January 1995, and subject to the acquired rights it has recognised, each Member State shall make the exercise of general medical practice under its national social security scheme conditional on possession of a diploma, certificate or other evidence of formal qualification as referred to in Article 30.
...
(2) Each Member State shall specify the acquired rights that it recognises. However, it shall recognise the right to exercise the activities of general medical practitioner under its national social security scheme without the diploma, certificate or other evidence of formal qualifications referred to in Article 30 as having been acquired by all those doctors who on 31 December 1994 possess such a right
pursuant to Articles 1 to 20 and who are established on its territory on that date by virtue of Article 2 or 9(1).
(3) – (5) ...’
B – Italian Law
5. Legislative decree No 256/1991 regulates which qualifications are necessary in order to exercise the activities of general medical practitioners in Italy. In principle, evidence of training in general medical practice is required. According to Article 6 of this legislative decree, however, doctors who had a right to practise in the national health system as general practitioners prior to 31 December 1994 by reason of acquired rights were also admitted.
6. At the time of the original dispute, access to certain general medical activities under the Italian social security scheme was regulated by a collective agreement dating from 1996, which came into force with Presidential Decree 484/96.
Article 1(3) of the collective agreement requires either evidence of training for general medical practice or authorisation by virtue of acquired rights.
7. In accordance with Article 2(1) of this collective agreement the medical authorities select doctors for the activities regulated by the agreement from a ranking list drawn up annually at regional level. According to Article 3 of the collective agreement, the candidates receive points which are based on the one hand on their professional qualifications and on the other hand on their professional experience. Evidence of training in general practice corresponds to 12 points. Each month of practice as a doctor under contract for primary care is credited with 0.20 points. This amount increases to 0.30 points if the practice took place in the region in question.
8. Further points may be acquired for certain special activities as a general practitioner. Article 3(3) of the collective agreement specifically excludes the cumulation of points which relate to the same period of professional activity. In contrast, there is no apparent rule which would specifically exclude a cumulation of points for professional activity with points for evidence of training in general practice.
9. Article 20 of the collective agreement is concerned with the allocation of individual vacant posts for primary care in areas where there is a shortfall. To this end, an additional ranking list of applicants for the particular activity is produced on the basis of the regional ranking list, whereby each applicant receives an additional 5 points if he has resided in the affected area of shortfall for a minimum of two years and an additional 20 points if he has resided in the province in question for a minimum of two years.
10. According to Article 3 No 6 of the collective agreement, the regions reserve 20% – 40% of the vacant posts for primary care for general medical practitioners who have acquired a training certificate and the remaining 60%-80% for doctors who, without this qualification – that is on the basis of acquired rights – have been admitted as a general medical practitioner under the Italian social security scheme. In the event that the agreement is not renewed in time, final provision number 5 provides that for each group a quota of 50% shall apply in the following year.
III – Facts and References for a preliminary ruling
11. The main proceedings are based on the fact that doctors who are trained for general practice and who are also authorised to practise as general practitioners by reason of acquired rights are able to apply for both quotas.
12. Initially, the local health authorities of the Apulia Region, in particular the party to the proceedings, Azienda Unitá Sanitaria Locale BA/3 with its seat in Altamura (hereinafter: AUSL BA/3 Altamura), declined, at the direction of the regional administration, to take the 12 points into account for applicants in the context of the quota for doctors with acquired rights, points which were allocated to ‘doubly qualified’ applicants on the basis of a training certificate. The referring court approved this practice in settled decisions on the basis of the Italian rules set out above. Case C-11/02 is based on the actions of ‘doubly qualified’ doctors, Berardi and Others, as well as Vaira and Others, parties to the proceedings, who complain about this practice.
13. In the meantime however, the Consiglio di Stato (Council of State) determined that the 12 points for the training certificate for ‘doubly qualified’ applicants must also be taken into account in the quota for doctors with acquired rights.
According to the referring court, the Consiglio di Stato took the view that the Medical Practitioners Directive precluded any less favourable treatment of holders of the training certificate.
14. The health authorities, including the authorities which are parties to the proceedings, Azienda Unitá Sanitaria Locale BA/1 with its seat in Andria (hereinafter: AUSL BA/1 Andria) and AUSL BA/3 Altamura, thereafter altered their practice at the direction of the regional administration of Apulia and recognised the 12 points for the training certificate for ‘doubly qualified’ applicants also for the quota for doctors with acquired rights. Fascicolo and Others and de Benedictis and Others challenge this. They are doctors who may apply exclusively for the quota for doctors with acquired rights, because they are not in possession of a training certificate.
Case C-10/02 is based on these complaints.
15. The referring court considers the view of the Consiglio di Stato to confer a one-sided advantage on the training certificate in comparison with the acquired rights, which contradicts the Medical Practitioners Directive. It therefore refers the following questions to the Court of Justice for a preliminary ruling:
‘1. Whether, under Article 7(2) of Directive 86/457/EEC and Article 36(2) of Directive 93/16/EEC, for the purpose of the exercise of general medical practice a right to practise acquired on or before 31 December 1994 is to be regarded as equivalent to the certificate of specific training in general medical practice?
2. Whether, pursuant to the abovementioned Community provisions, with effect from 1 January 1995 the award of a certificate of specific training in general medical practice allows Member States to grant to doctors who also have a right to practise acquired on or before 31 December 1994 more favourable terms in the form of access to a wider range of reserved posts than that granted to the holders of either one qualification or the other?
3. If the previous question is answered in the affirmative:
Whether in view of the rules applicable to acquired rights, the abovementioned condition allows the Member States to grant the abovementioned doctors further special treatment by in all cases granting them additional points for obtaining the certificate of specific training in general medical practice?’
IV – Legal Appraisal
A – Submissions of the parties
16. There are two recognisable positions amongst the parties to the proceedings.
17. Fascicolo and Others, de Benedictis and Others as well as AUSL BA/3 Altamura are of the view that the Medical Practitioners Directive precludes the allocation of points for the training certificate if the holder of the certificate applies for the quota for holders of acquired rights.
18. This position is based on the assumption that the qualification to become a general medical practitioner through acquired rights is equivalent to training. Training does not therefore give rise to an additional qualification of the doctor if he may already practise as a general medical practitioner by virtue of acquired rights. Crediting of additional points for training is not justified, therefore, in the context of the quota for holders of acquired rights. If these points are awarded, holders of acquired rights without training as general medical practitioners are considerably disadvantaged in competition. By so doing, in particular the purpose of the quota, that is protection of doctors with acquired rights, is called into question. Finally, there is also the risk that doctors would train as general practitioners only, because in this way they may acquire more points than through practice during a comparable period. In order to prevent this, the value of the training certificate has been reduced to 7.2 points in the latest collective agreement. This value corresponds to practice of two years in a particular region.
19. In contrast to this Beradi and Others, Vaira and Others, AUSL BA/1 Andria as well as the Apulia Region believe that the allocation of points for the training certificate is permissible where the holder of the certificate applies for the quota for holders of acquired rights.
20. This view differentiates between the admittance to the activity of a practising doctor under the social security scheme and the evaluation of qualifications for the selection of applicants. As the principle of equality requires that only like be compared with like, unlike with unlike, doubly qualified applicants may be given access to a larger job quota. The cost of acquiring a training certificate justifies its being valued higher than a corresponding period of medical practice. The refusal to grant 12 points for this certificate would result in the holders of certificates being disadvantaged against those who had practised instead of two years’ training and thus acquired between 4.8 and 7.2 additional practice points.
21. First of all, the Commission emphasises that the detailed rules for access to employment in national health schemes were not laid down by Article 36(2) or other provisions of the Medical Practitioners Directive. Nevertheless it deduces from the Garofalo
decision (4) that recognition of acquired rights is of equal value to the training certificate. In this judgment the Court of Justice recognised that the Member States have a broad discretion in the recognition of acquired rights which is only limited in that at least all established doctors from other Member States must be recognised who were authorised before 1 January 1995 to practise as general practitioners.
B – Opinion
22. In this case the Court of Justice is requested to decide whether the allocation of a higher value to the training certificate for general medical practice than to the acquired rights of doctors with equal status is in accordance with the Medical Practitioners Directive or whether instead both categories should be treated in the same way. However, this question implies that the Medical Practitioners Directive does indeed include a rule on the selection of applicants for general medical practice in the social security scheme.
23. Even the applicability of the Medical Practitioners Directive could be in doubt in the present cases because they seem to be concerned with purely domestic facts without reference to the fundamental freedoms. (5) The Medical Practitioners Directive is based on Article 49 of the EEC Treaty (now, after amendment, Article 40 EC), Article 57(1) and (2), sentences 1 and 3 of the EEC Treaty (now, after amendment, Article 47(1) and (2), sentences 1 and 3 EC) as well as Article 66 of the EEC Treaty (now Article 55 EC), which serve as the basis for rules on the facilitation of freedom movement for workers as well as the freedom of establishment and the freedom to provide services.
24. The Medical Practitioners Directive is not, however, limited to the facilitation of freedom of movement for doctors at Community level but also harmonises the minimum requirements for training as general medical practitioners. (6) Because of this harmonisation the Medical Practitioners Directive also has a regulatory effect in purely national cases. (7) This regulatory effect is not inconsistent with the legal bases of the Medical Practitioners Directive. Article 57(2) of the EEC Treaty expressly permitted the coordination of the laws and regulations of the Member States concerning the taking-up and pursuit of activities as self-employed persons. Such a coordination also covers purely national cases.
25. Nevertheless a closer study of the provisions in the Medical Practitioners Directive shows that it does not regulate the selection of applicants for general medical practice under the social security scheme.
26. Only with regard to training does Article 36(1) of the Medical Practitioners Directive create a particular access requirement for the exercise of general medical practice under the social security scheme of a Member State. This provision does not imply that every doctor who holds this qualification has a right to exercise such activities. Recognition of acquired rights under Article 36(2) of the Medical Practitioners Directive cannot form the basis of more extensive rights with regard to the selection of doctors for activities of that kind.
27. The other rules in Title IV on specific training in general medical practice concern the requirements for this training, the recognition of training certificates as well as the right to use professional titles. There is no rule as to the criteria by which certain candidates should be selected from a group of suitable applicants.
28. Furthermore, the other provisions of the Medical Practitioners Directive relate essentially to the necessary qualifications for doctors and specialists as well as recognition of their certificates of training. As with the qualification as general medical practitioner, these are only rules about admittance requirements connected with training, but are not definitive selection criteria. In the overall context of the Medical Practitioners Directive only Article 21 regulates an aspect of admittance to activities under the social security scheme which are not related to training, namely the requirement for a preparatory training period. This provision has in the meantime lapsed through passage of time.
29. The Medical Practitioners Directive today therefore merely governs the admittance requirements with regard to the necessary training and the possibility and minimum extent of recognising acquired rights. Furthermore, in accordance with recital 22, the Medical Practitioners Directive expressly leaves to the Member States the power to organise their social security schemes and to determine what activities are to be carried out under those schemes.
30. The Member States may therefore freely establish the selection criteria for general medical practitioners in the social security scheme as long as they require at least one qualification as general practitioner or an acquired right to exercise this activity.
31. As the Commission indicated in the oral hearing, more extensive requirements in crossborder cases may result from the fundamental freedoms of Community law. Although in the oral hearing de Benedictis and Others attempted to demonstrate potential crossborder connections, it must be stated that these connections in the present case are merely fictional. The referring court has not raised any questions in this respect. Therefore there is no reason to examine the application of the fundamental freedoms in the present case.
32. Accordingly, with reference to the second and third questions it must be found that the Medical Practitioners Directive does not include rules as to whether
– the award of a certificate of specific training in general medical practice allows Member States to grant to doctors who also have a right to practise acquired on or before 31 December 1994 more favourable terms in the form of an entitlement to apply for a larger number of posts than granted to the holders of a certificate of training in general medical practice and doctors treated as equivalent to them and/or whether
– the Member States may grant the abovementioned doctors further special treatment by in all cases granting them additional points for obtaining the certificate of specific training in general medical practice.
33. The practical significance of an answer to the first question, whether the Medical Practitioners Directive places a higher value on training for general medicine than on acquired rights, appears to be in doubt in view of this intermediate conclusion. However, as the referring court and some of the parties to the proceedings base their views on the alleged equivalent value of both ‘qualifications’ and Article 1(3) of the collective agreement includes admittance on the grounds of acquired rights as an equivalent title (titolo equipollente), it seems appropriate that an opinion should also be given on this question.
34. Neither the Medical Practitioners Directive nor the Garofalo
judgment expressly state that training for general medicine and acquired rights are equivalent. Nevertheless, the Medical Practitioners Directive places a high value on training. According to recital 17, it was introduced to counter training deficiencies in conventional training for general medicine. According to recital 18, through this supplementary qualification the Community legislature envisages a gain for patients and improvements in general medical care. (8) Such advantages can represent an overriding public interest ground which is necessary in order to justify the disadvantage associated with the training requirement in comparison with the freedom to pursue professional activities. (9)
35. In contrast, there are no indications in the Medical Practitioners Directive that a special value is to be attributed to acquired rights. Article 36(2) of the Medical Practitioners Directive introduced recognition of acquired rights for the protection of doctors who had exercised their right of freedom of establishment and prior to 1 January 1995 held the necessary qualification to practise general medicine under the social security scheme. (10) The Member States may extend the circle of protected doctors. (11) In particular, they are not required to demand certain minimum periods of professional practice or other forms of qualification. Acquired rights already exist – theoretically – according to the Italian rules if a doctor was authorised only during 31 December 1994 to practise as a general practitioner. Accordingly, the possibility of recognition of acquired rights does not presuppose any particular qualifications. Mere recognition of acquired rights does not therefore offer any increase in the quality of patient care or benefit for the public health system. Rather it is a pure rule for hardship cases.
36. In summary it is to be observed that a higher value is placed on training for general medicine than on the recognition of acquired rights. The higher value of training does not, of course, exclude the fact that by reason of their practical experience holders of acquired rights are comparably or better qualified for the practice of general medicine than holders of a training certificate. The reason for this better qualification would not lie in the acquired rights but rather in the practical experience as such.
37. Thus the answer to the first question is that the Medical Practitioners Directive fundamentally places a higher value on the training certificate in general medical practice than on acquired rights.
V – Conclusion
38. I propose, therefore, answering the questions of the Regional Administrative Court of Puglia as follows:
1. 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, in principle places a higher value on training in general medical practice than on acquired rights.
2. Directive 93/16/EEC does not include a rule as to whether:
– the award of a certificate of specific training in general medical practice allows Member States to grant to doctors who also have a right to practise acquired on or before 31 December 1994 more favourable terms in the form of an entitlement to apply for a larger number of posts than granted to the holders of a certificate of training in general medical practice and doctors treated as equivalent to them, and/or whether
– the Member States may grant the abovementioned doctors further special treatment by in all cases granting them additional points for obtaining the certificate of specific training in general medical practice.
(1) .
(2)
–	OJ 1993 L 165, p. 1.
(3)
–	OJ 1986 L 267, p. 26.
(4)
–	Judgment in Joined Cases C-69/96 to C-79/96 Garofalo and Others
[1997] ECR I‑5603, paragraph 31.
(5)
–	Cf. Opinion of Advocate General Ruiz-Jarabo Colomer in Garofalo
[1997] ECR I‑5605, point 46 et seq.
(6)
–	Cf. judgment in Case C-25/02 Rinke
[2003] ECR I‑0000, paragraph 38.
(7)
–	Cf. in this sense the decision of 17 October 2003 in Case C-35/02 ( Vogel
[2003] ECR I-0000). The Council Directive 78/687/EEC of 25 July 1978 for the co-ordination of legal and regulatory provisions for the activities of dentists (OJ 1978 L 233, p. 10) which is comparable to the Medical Directive prevents a national ruling permitting (national) doctors generally to practise the activities of a dentist although they have not completed the necessary training in accordance with Directive 78/687.
(8)
–	As also the Rinke
judgment (cited in footnote 6, paragraph 38).
(9)
–	On indirect sex discrimination see the Rinke
judgment (cited in footnote 6). Interference with freedom of profession is also to be justified.
(10)
–	Garofalo
judgment (cited in footnote 4, paragraph 31).
(11)
–	Garofalo
judgment (cited in footnote 4, paragraph 34).