61996CC0069_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 The Italian Consiglio di Stato (Council of State) has referred three questions to the Court of Justice for a preliminary ruling.
The first relates to the concept of a court or tribunal entitled to make use of the reference procedure provided for in Article 177 of the EC Treaty, and the other two relate to Council Directive 86/457/EEC of 15 September 1986 on specific training in general medical practice. (1)
2 This reference has been made in the course of an administrative procedure entailing what is known as an `extraordinary petition', which is made to the President of the Italian Republic and by which it is possible to challenge decisions (acts and regulations) of administrative authorities.
In that procedure, the Consiglio di Stato must deliver an opinion which, though not binding on the decision-making body, is usually followed by it. (2)
Facts and main proceedings
3 The petitioners are Italian surgical doctors who hold the appropriate academic qualifications, the required certificate of entitlement to practise medicine and a certificate evidencing specific training in general medical practice issued in accordance with Legislative Decree No 256 of 8 August 1991.
4 They all applied for posts as general medical practitioners under contract to the Unità Sanitaria Local (Local Health Unit) No 58, Palermo, advertised in the vacancy notice published in the Gazetta Ufficiale della Regione Siciliana No 59 of 26 November 1994.
5 The list of accepted candidates was approved by the Director of the Local Health Unit by decision No 1495 of 4 April 1995.
It apparently (3) included other doctors who, although not having the certificate evidencing specific training in general medical practice, had been put in positions above the petitioners.
6 By the extraordinary petition addressed to the President of the Republic, the petitioners challenge:
(a) first, and directly, the list of accepted candidates, on the ground that, in their submission, the 1991 Legislative Decree, without prejudice to acquired rights, makes a specific training certificate a condition for entry into practice as a general medical practitioner under contract to the national health service, as from 1 January 1995;
(b) secondly, and indirectly, (4) the Decree of the Minister for Health of 15 December 1994 (which grants the benefit of `acquired rights' to all doctors entitled to practise on 31 December 1994, even if they did not hold the other certificate in question), which the Director of the Local Health Unit cited as the basis for his decision.
7 Before giving its opinion on the petitions submitted to it, the Consiglio di Stato considered it necessary to refer to the Court of Justice questions relating to its own capacity to make a reference for a preliminary ruling when acting within the context of an extraordinary petition and to the interpretation of the Directive.
8 The questions it has referred are worded as follows:
`(1) Must the term "court or tribunal" in Article 177 of the Treaty be interpreted extensively so as to include not only judicial bodies specifically defined as such in national law but also contentious administrative proceedings characterized not only by impartiality, full exchange of argument and evidence between the parties and so forth but also by the fact that the decision cannot be revoked, amended or challenged by any other administrative or judicial authority?
(2) Do the words "all those doctors who on 31 December 1994 possess such a right" in Article 7(2) of Directive 86/457/EEC refer to those who had theoretically obtained entitlement to enter into a service relationship (as employees, under contractual arrangements, as members of temporary staff, and so forth) with the national health service, or only to those who had in fact already entered into such a relationship?
(3) If the last question is answered in accordance with the second possibility, is the directive to be interpreted as meaning that the national authority is in any event entitled to extend the term "acquired rights" so as to include all those who, on the date indicated, had acquired an ordinary certificate of entitlement to practise medicine, or as meaning that an "acquired right" must be taken to refer to a higher qualification than an ordinary certificate of entitlement to practise medicine?'
Relevant legislation
9 The Consiglio di Stato expresses doubts as to the interpretation of Directive 86/457.
That directive, however, was expressly repealed by Council Directive 93/16/ EEC of 5 April 1993, which was intended to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (5) (hereinafter `Directive 93/16').
10 The references which the Consiglio di Stato makes to the articles of Directive 86/457 must therefore be updated so as to be understood as referring to the corresponding articles of Directive 93/16.
This does not raise any particular problems given that the original text of the first directive, as subsequently amended, was incorporated in the second. (6)
11 Directive 86/457, when adopted, was intended to fill in the gaps, regarding the training of general medical practitioners, which had been left by the aforementioned Directives 75/362/EEC and 75/363/EEC, which contained no provisions regarding the mutual recognition of diplomas or certificates attesting to specific training in general medical practice or the criteria to which such training should conform.
12 Directive 86/457, however, recognized that the improvement of training in general medical practice, and the upgrading of the status of general medical practitioners that would follow from this, would have to be done at different speeds in the various Member States, since such a gradual approach was the only means of ensuring convergence between all the Member States. Accordingly,
(a) initially, each Member State was to institute specific training in general medical practice which satisfied minimum quality and quantity requirements, and supplemented the minimum basic training which medical practitioners must have in accordance with Directive 75/363;
(b) at a second stage, Member States were to make provision for the practice of general medicine under a social security scheme to be subject to completion of specific training in general medicine.
13 Once the minimum conditions governing the issue of diplomas, certificates or other evidence of formal qualifications attesting to specific training in general medical practice had been coordinated in this way, the Member States were then to move towards the mutual recognition of such diplomas, certificates or other evidence of formal qualifications.
14 Articles 30 to 35 of Directive 93/16 govern the various aspects of specific training in general medical practice, the pace of its introduction in the Member States and the conditions governing the issue and recognition of diplomas, certificates and other evidence of formal qualifications attesting to completion of such training.
15 Article 36 of Directive 93/16 (which corresponds to Article 7 of Directive 86/457) concerns only the exercise of general medical practice under a national social security scheme, and it is to the second paragraph of that article that the two questions referred by the Consiglio di Stato regarding the substance of the dispute relate.
16 Paragraphs (1) and (2) of Article 36 read as follows:
`1.
From 1 January 1995, and subject to the acquired rights it has recognized, 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.
However, Member States may exempt from this condition persons who are undergoing specific training in general medical practice.
2. Each Member State shall specify the acquired rights that it recognizes.
However, it shall recognize 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 qualification 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 Articles 2 or 9(1).'
The first question: the Consiglio di Stato; the extraordinary petition to the President of the Republic; and the concept of a court or tribunal within the meaning of Article 177 of the Treaty
17 The first question is, in fact, concerned with the admissibility of the reference, for if, when dealing with an extraordinary petition, the Consiglio di Stato did not have the status of a court or tribunal within the meaning of Article 177, not even its first question would be admissible.
However, as the very point of its first question is to have its status under Article 177 examined, the paradox will be resolved simply by answering the question.
18 At first sight the question appears to be somewhat asymmetrical since it asks literally whether the concept of a court or tribunal may encompass procedures.
The immediate reply would have to be in the negative: the term `court or tribunal' cannot be interpreted as including any form of `procedure' at all.
Courts and tribunals are, by definition, public institutions, or, broadly speaking, judicial decision-making bodies which act pursuant to certain procedures.
It is obvious, however, that `procedures' cannot be identified with `courts or tribunals'.
19 The question must therefore be reworded or, at least, understood as referring to the entity - implicit in the question - which acts pursuant to the particular procedure.
20 More specifically, according to the reasoning in the order for reference, what the Consiglio di Stato is actually asking is whether the concept of a court or tribunal within the meaning of Article 177 of the Treaty does or does not include bodies which, like itself, deliver compulsory opinions, which are usually followed by the decision-making authority, in the course of contentious administrative proceedings intended to challenge administrative acts or provisions, where such proceedings, characterized by impartiality and the full exchange of argument and evidence between the parties, result in a final decision which cannot be challenged by any other administrative or judicial authority.
21 Before that question can be answered, it is necessary to examine the role which the Consiglio di Stato plays when an extraordinary petition is made to the President of the Italian Republic.
22 As the Consiglio di Stato itself states in its order for reference, the extraordinary petition to the President of the Republic, as defined in Italian legislation (Presidential Decree No 1199 of 1971), and as interpreted in successive rulings of the Constitutional Court and in administrative case-law, has the following characteristics:
(a) It is a contentious procedure which guarantees full exchange of argument and evidence between the parties: private individuals are entitled to see and obtain copies of the file documents and, in particular, the report submitted by the Ministry to the Consiglio di Stato, for the purpose of presenting their defence.
(b) It is a remedy available as an alternative to, and in parallel with, an application to the ordinary courts (normally, the regional administrative courts); apart from one or two secondary characteristics (different time-limit for instituting proceedings; the necessity or otherwise for all `internal' administrative remedies to have been exhausted), the conditions for commencing the two procedures are identical, as is the type of protection sought (petitum: annulment of an administrative act which adversely affects a subjective set of circumstances defined as a `legitimate interest'; causa petendi: unlawfulness of the administrative act); a person who decides to lodge an extraordinary petition cannot make an application to the regional administrative court, and vice versa.
(c) The decision meets strictly legal criteria, independently of any discretionary appraisal of the public interest.
(d) The decision - formally adopted by Decree of the President of the Republic on a proposal from the competent minister - is in reality based on the opinion of the Consiglio di Stato, from which it may depart only if the matter is referred to the Council of Ministers.
(e) The Consiglio di Stato is an impartial body whose independence is guaranteed by the Constitution, inter alia because it also discharges judicial functions.
(f) A decision given on an extraordinary petition is binding on the parties and has practically the same effect as res judicata; moreover, when its tenor entails annulment of an administrative act of a regulatory or general nature, it takes effect erga omnes. (7)
(g) The final decision may be amended only in order to correct clerical errors or, in exceptional cases of review, in accordance with the same rules as are laid down for judgments in civil proceedings against which no appeal lies; other than in those exceptional circumstances, it cannot be amended or revoked by the same authority which issued it, either at the request of the parties (8) or ex proprio motu;
nor can it be subjected to review by any other authority, whether judicial or administrative. (9)
23 These individual characteristics have given the extraordinary petition to the President of the Republic a shape which, while deriving historically from the powers which the sovereign exercised extra ordinem, was incorporated into the republican system by the allocation of an important role to the Consiglio di Stato, which, under the Italian Constitution, discharges judicial functions in matters relating to the activities of the public administration. (10)
24 Applying to this procedure the criteria which the Court of Justice has laid down in its interpretation of Article 177 of the Treaty, (11) I am led to the view that the Consiglio di Stato, a body which, when called upon to adjudicate itself in cases concerning administrative acts, undoubtedly satisfies the conditions laid down by the Court of Justice for a body to be classified as a court or tribunal for the purposes of Article 177 of the Treaty, may also refer questions for a preliminary ruling when acting within the context of an extraordinary petition submitted to the President of the Republic.
25 For, when so acting, the Consiglio di Stato does not cease to meet the criteria which the aforementioned case-law has established as characterizing a court or tribunal entitled to refer questions for a preliminary ruling:
- it is an institution established by law;
- it is permanent and not merely temporary;
- it acts within the context of a contentious procedure after a full exchange of argument and evidence between the parties;
- its decisions are based on the application of rules of law and not on discretionary criteria; (12)
- the independence and impartiality of its members, whether they form part of the advisory sections or the judicial sections, (13) are guaranteed by law.
26 It is true that the advisory role played by the Consiglio di Stato in relation to an extraordinary petition made to the President of the Republic raises a problem as regards another of the conditions consistently laid down by the Court of Justice for use of the preliminary reference procedure.
I refer to the requirement that bodies making references should have authority to exercise compulsory jurisdiction (in the sense that they must render decisions which are binding on the parties); that is to say that they must decide cases by exercising the power to administer justice vested in the State.
Can the Consiglio di Stato, which indisputably has that quality when sitting in its judicial capacity, be recognized as having it also when sitting in its advisory capacity?
27 There are two possible approaches to the answer:
(a) the first, which is strictly formal, is to deny that status to a body whose functions in a procedure for challenging an administrative act are purely advisory and not adjudicatory;
(b) the second, which would address more general considerations, is to hold that a body such as the Consiglio di Stato may, exceptionally, retain its character as a judicial body even when it does not itself adjudicate but when it delivers opinions within the particular procedure for challenging administrative acts afforded by an extraordinary petition submitted to the President of the Republic, who usually follows them.
28 In support of the first approach, I could cite the order made by the Court in Case 318/85 (14) by which the Court of Justice declared a reference for a preliminary ruling from the Commissione Consultiva per le Infrazione Valutarie (`the Consultative Commission') inadmissible on the following grounds: `[...] According to Article 177 of the EEC Treaty, a request for a preliminary ruling may be submitted to the Court of Justice only by a court or tribunal of a Member State required to give a ruling in proceedings which are intended to result in a judicial decision.
That is not the position in this case since the task of the Consultative Commission is not to resolve disputes but to submit an opinion on an administrative procedure.'
29 I consider, however, that the special characteristics of the Consultative Commission, which were emphasized in the order in Case 318/85, (15) and of the administrative procedures in which it acted, are different from those of the procedure for presenting an extraordinary petition to the President of the Republic and the part played in it by the Consiglio di Stato.
This means that the ratio decidendi of that order cannot be applied to this case.
30 The second approach is borne out by the judgment in Case 36/73 Nederlandse Spoorwegen, (16) in which the Court of Justice accepted a reference for a preliminary ruling made by the Netherlands Raad van State prior to issuing its - not legally binding - opinion in proceedings challenging administrative acts the final decision in which lay with the Crown.
31 It is true that the judgment in Nederlandse Spoorwegen does not contain any express reasoning which justifies the acceptance of the questions referred for a preliminary ruling in that case.
In fact, the issue is not even raised in the grounds of that judgment.
Such reasoning must be sought in the Opinion of Advocate General Mayras, (17) who expressly addressed the issue and advocated the approach in favour of admissibility which was adopted by the Court.
32 The Opinion of Advocate General Mayras on this point was based essentially on the fact that the Netherlands Crown, as nominal administrator of justice under a system of `residual jurisdiction', was assisted by the Raad van State, a body established by the Constitution whose impartiality and independence were unquestioned.
It also discharged advisory functions and had jurisdictional powers: in its advisory capacity, it issued its opinion after an inter partes hearing in special proceedings - unlike any other application to the administrative authorities - whereby the Crown (18) was able to annul certain acts of the administration.
33 The similarities between that precedent and this case are obvious.
Both subjectively (the nature and composition of the body) and objectively (the function performed by the opinion in a specific procedure for challenging administrative acts and provisions), the parallels between the two are undeniable.
Accordingly, in the absence of any significant indication of a shift in the case-law established by the Court of Justice with regard to the interpretation of Article 177 of the Treaty, the approach adopted in Nederlandse Spoorwegen should, in principle, also be applied to this case.
34 I recognize, however, that this conclusion is flawed in at least two respects:
(a) on the one hand, the decision-making body is not, legally speaking, the Consiglio di Stato but the President of the Republic, who does not have
jurisdictional functions;
(b) on the other hand, the extraordinary petition, despite its parallels with judicial proceedings, is nevertheless an administrative challenge procedure in which, for example, the Consiglio di Stato cannot raise issues of unconstitutionality before the Italian Constitutional Court, a prerogative reserved for the courts and tribunals of that country.
35 The first objection, the significance of which is indisputable, could be dismissed on the grounds of the material and not merely formal role which the Consiglio di Stato plays in the extraordinary petition procedure.
While it is true that responsibility for taking the final decision lies nominally with the President of the Republic, it is also true that the substance of that decision is in fact determined by the Consiglio di Stato through its opinion.
In practice, the compulsory involvement of the advisory body plays a key role in the decision on the petition.
36 As regards the second objection, even if it is conceded that the nature of the extraordinary petition to the President of the Republic is not strictly judicial from the point of view of domestic law, the characteristics which I have examined above
combine to place it within a category very close to that of a judicial procedure. (19) It is not just a mere application to the administrative authorities, (20) the final decision in which can itself be challenged before the courts.
37 That latter characteristic prompts me to advocate - albeit with certain reservations - the approach affirming the admissibility of the preliminary reference made by the Consiglio di Stato.
The uncontestability of the final decision (formally a matter for the President of the Republic but materially based on the opinion of the aforementioned advisory body), which is not open to subsequent judicial review, is a key element in the admissibility of the reference.
To reject references for preliminary rulings made in the course of an extraordinary petition which results in decisions of this kind could undermine the uniform application of Community law in so far as the bodies with
jurisdiction under national law to decide such cases at last instance would be denied the opportunity to refer to the Court of Justice questions on the interpretation or validity of Community provisions.
38 Underpinning some of the judgments in which the Court of Justice has decided to accept preliminary references from bodies of an uncertain judicial nature has been concern for the effectiveness of Article 177.
Thus, in Broekmeulen, (21) the Court accepted questions referred for a preliminary ruling by a Netherlands appeals committee, established within a medical society, which was responsible for adjudicating on the registration of doctors and, consequently, their entitlement to pursue their professional activities, within a legal system which, in practice, did not provide for any effective remedies before the ordinary courts.
39 It is true that the extraordinary petition to the President of the Italian Republic is by no means the only course available for defending rights and interests liable to be affected by the acts of the administration:
on the contrary, the general principle of access to judicial protection is open to all.
It is also true, however, that, because of the particular nature of the Italian legal system, a challenge by means of an extraordinary petition is a legitimate procedural remedy which has the same effects as ordinary court proceedings.
If we add to this the fact that the final decision on the extraordinary petition is in practice based on the opinion of an impartial and independent body, the substance of which is determined solely by `the straightforward application of strict law', the conditions for application of Article 177 of the Treaty appear to me to be fulfilled.
40 In short, despite the weight of the objections that can be made against the admissibility of the reference, I propose that the Court of Justice should accept the reference, in view of the specific characteristics of the body making it and the procedure in which the reference arises.
41 It is important to point out that this course is prompted by the special characteristics of the extraordinary petition which I have already mentioned.
It could not therefore be adopted with regard to all other applications to administrative authorities, the decisions on which are open to judicial review, or to the procedures in which the Consiglio di Stato delivers an opinion as part of its ordinary advisory functions.
The second and third questions
42 It is my view that, given the close link between the second and third questions, the answer to both should be the same.
I shall nevertheless consider them in the order in which they have been submitted.
43 By its second question, the Consiglio di Stato seeks an interpretation of Article 7(2) of Directive 86/457 as regards the obligation to respect the rights acquired by certain doctors.
For the reasons given earlier, it must be understood that the provision to be interpreted is Article 36(2) of Directive 93/16.
44 Specifically, the body making the reference asks whether or not the acquired right to exercise the activities of general medical practitioner under a national social security scheme - which, according to the second sentence of Article 36(2), must be recognized as having been acquired by those `[...] 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)' - is confined to those who already had an employment relationship with the national health service.
45 Above all, I should point out that the facts of the main proceedings relate to purely domestic situations.
In principle, they are in no way concerned with the free movement of workers, the right of nationals of one Member State to establish themselves in the territory of another Member State, the freedom to provide services or with the recognition of diplomas, formal qualifications and other certificates issued by other Member States.
46 Since the issue in the case concerns the evaluation of formal qualifications, certificates or diplomas issued by the Italian authorities, (22) within the context of an open competition to fill a vacancy for a doctor in the Italian national social security scheme, there is nothing to link that issue with the freedoms to which I referred or with the recognition of foreign diplomas.
47 Taking into account the fact that Directive 93/16 actually seeks to develop the principles of the Treaty which relate to those freedoms, (23) the Court in its reply could merely point out to the Consiglio di Stato that Articles 49 (free movement of workers), 52 and 57 (mutual recognition of diplomas, certificates and other evidence of formal qualifications) do not apply to a situation confined in all respects to a single Member State. (24)
48 However, I believe that such a reply might not dispel all the doubts which the Consiglio di Stato expresses in its reference.
I therefore consider it more appropriate - as suggested by the Commission - to provide it with the proper interpretation of Article 36(2) of Directive 93/16 in so far as it relates to doctors who hold certain acquired rights which Member States must respect.
49 It must also be borne in mind that Directive 93/16 is a Community provision aimed at coordinating the laws, regulations and administrative measures enacted by Member States in respect of the training of doctors and conditions governing entry into certain forms of medical practice. (25)
Its uniform application is also, therefore, a matter of indisputable Community interest.
50 According to Article 36(2) of Directive 93/16, as reproduced above, each Member State is required to guarantee for a certain category of doctors the right to exercise the activities of general medical practitioner under its national social security scheme.
As the wording and meaning of that provision and the place it occupies in the Directive indicate, those doctors can only be those who have been recognized by the host State as having acquired a formal qualification, diploma or certificate issued by another State.
51 Doctors who must be recognized as being entitled to practise as general practitioners under the national social security scheme must meet two cumulative conditions:
(a) even if they do not hold a formal qualification, diploma or certificate as a general practitioner, they must, on 31 December 1994, have the right to practise as such pursuant to Articles 1 to 20 of Directive 93/16 (that is to say because the formal qualification in medicine awarded in another Member State entitles them to do so);
(b) they must, on 31 December 1994, be already established in the territory of the host Member State where their formal qualifications were recognized under Article 2 (26) or Article 9(1) (27) of Directive 93/16.
52 It is clear, then, that Article 36(2) of Directive 93/16 is intended to safeguard only the rights acquired by doctors who, on 31 December 1994, are established in a host Member State, after having been recognized as holding diplomas, certificates or formal qualifications issued to them in another Member State, the Member State of origin. It does not, however, apply to a case such as that in these proceedings where none of those circumstances obtains, since the formal qualifications in question were issued in Italy and their effect is at issue only in relation to posts of
doctor in the national social security scheme of that country.
53 On that premiss, it is irrelevant whether those doctors had in fact entered into a service relationship with the national social security scheme or, conversely, were only theoretically entitled to enter into such a relationship, the two possibilities referred to in the second question. Either way, Member States must guarantee the rights acquired before 1 January 1995 by doctors who satisfy the two conditions described above in such a way as to enable them to practise general medicine under the national social security scheme.
54 The reference to acquired rights is the connecting link between the second and third questions.
In the former, the body making the reference inquires about the acquired rights of certain categories of doctor, while by the latter it seeks an interpretation of the general scope of those rights.
55 However, the Consiglio di Stato has submitted its third question only in the event that the Court answers the second question to the effect that the rights acquired by the doctors to which it refers are confined to those who, on 31 December 1994, already had an employment relationship with the national social security scheme.
56 In view of the reply which I propose should be given to the second question, which precludes a restrictive interpretation of the rights of doctors covered by Article 36(2) of Directive 93/16, it would not be necessary to answer the third question.
Both the Commission and the Italian Government have expressed the same view.
57 Nevertheless, for the purpose of providing the body making the reference with criteria for interpreting the Community provision in question which may be of use to it, I see no reason why the Court should not consider the concept of `acquired rights' in Article 36 of Directive 93/16, since that is the matter on which the Consiglio di Stato has doubts.
58 As I have explained, Article 36(1) of Directive 93/16 provides that, from 1 January 1995, Member States are to make the exercise of general medical practice under their national social security schemes conditional on possession of a diploma, certificate or other evidence of formal qualification as referred to in Article 30.
That requirement, however, applies `subject to the acquired rights it has recognized', which each Member State must specify (Article 36(2), first sentence, of Directive 93/16), the only proviso being that they must in any event respect the rights of certain doctors whose circumstances I have examined when considering the second question.
59 The right to specify the acquired rights, which the Community provision confers on each Member State, has therefore only one limitation laid down in Article 36(2) of Directive 93/16.
Provided that the substance of that limitation is respected, each Member State is at liberty to stipulate on whom and under what conditions the acquired right to practise general medicine under its national social security scheme is to be conferred, having regard to the circumstances of each case prior to 1 January 1995.
60 Accordingly, apart from the obligation to guarantee the acquired rights of the doctors referred to in Article 36(2), Directive 93/16 does not contain any other provision or criterion which limits the right of Member States to determine who will enjoy the acquired rights referred to in paragraph 1 and the first sentence of paragraph 2 of Article 36.
Conclusion
I therefore propose that the Court answer the questions raised by the Consiglio di Stato as follows:
(1) Article 177 of the EEC Treaty must be interpreted as meaning that a body having the characteristics of the Consiglio di Stato may refer questions for a preliminary ruling when it issues a compulsory opinion in the context of a procedure such as the `extraordinary petition to the President of the Republic' challenging administrative acts.
((2) Article 36(2) of Directive 93/16/EEC authorizes each Member State to determine at its own discretion which doctors hold the right acquired prior to 1 January 1995 to practise general medicine under its national social security scheme.
They must include doctors who satisfy the requirements laid down in the second sentence of the aforementioned paragraph, irrespective of whether or not, on 31 December 1994, those doctors had in fact an employment relationship with that social security scheme.
(1) - OJ 1986 L 267, p. 26.
(2) - The characteristics of the extraordinary petition, which I shall examine later, make it unique within the range of remedies available against administrative acts in the various Member States. Only in the Netherlands legal system has a similar means of redress existed: it was made to the Crown, which made its decision after taking the compulsory, though not binding, opinion of the Raad van State; it is now confined to disputes between public bodies.
(3) - The Consiglio di Stato itself states that this is not certain, pointing out that the petitions are not explicit in this respect.
(4) - The form of procedure employed is well known in many legal systems: an administrative act is challenged directly and, at the same time, the regulation on which it is based is challenged indirectly.
(5) - OJ 1993 L 165, p. 1. Article 44 of Directive 93/16 provides that: `The Directives listed in Annex III, Part A, are hereby repealed, without prejudice to the obligations of the Member States concerning the deadlines for transposition set out in Annex III, Part B. References to the said Directives shall be construed as references to this Directive and should be read in accordance with the correlation table in Annex IV.'
(6) - The preamble to Directive 93/16 states that it is intended, for reasons of clarity and rationality, to consolidate Council Directives 75/362/EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the rights of establishment and freedom to provide services (OJ 1975 L 167, p. 1), and 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, p. 14), both substantially amended on several occasions.
Besides grouping together those Directives in a single text, it incorporates therein the aforementioned Directive 86/457.
(7) - Strictly speaking, a decision given on the extraordinary petition does not have the authority of res judicata, a view shared by most Italian courts. Nor is there a special way of enforcing such a decision, so that any refusal by the administration to comply with it would necessitate recourse to the administrative courts.
(8) - The Consiglio di Stato says that a possibility of appeal is available to persons who have not been parties to the proceedings, but the same can be said essentially of judicial decisions as well since res judicata is not effective in relation to third parties; the decision on the extraordinary petition does, however, have immediate and significant legal effects in relation to third parties, as stated under (f) above.
(9) - In the Italian legal system, there are various types of contentious administrative decision, characterized by the impartiality and independence of the decision-making body and by full exchange of argument and evidence between the parties, but in all of them, according to the Consiglio di Stato, there is always the possibility, ultimately, of appeal to the (civil or administrative) courts. In this respect, therefore, the extraordinary petition is different from all other applications to the administrative authorities. From the point of view of constitutionality, the justification for this unique example of an administrative decision not subject to judicial review is usually said to be that the parties (not only the plaintiff but also the defendants) have the option of choosing a judicial remedy.
So, if an extraordinary petition leads to a decision, it is because all the parties have accepted that type of decision and, therefore, implicitly rejected judicial protection.
(10) - See, in this connection, Cassarino S.: Manuale di Diritto Processuale Amministrativo, Milan, 1990, p. 52.
(11) - See, inter alia, Case 61/65 Vaassen v Beambtenfonds voor het Mijnbedrijf [1966] ECR 261; Case 14/86 Pretore de Salò v Persons Unknown [1987] ECR 2545; Case 338/85 Pardini v Ministero del Commercio con l'Estero [1988] ECR 2041; Case C-24/92 Corbiau v Administration des Contributions [1993] ECR I-1277; Case C-393/92 Municipality of Almelo and Others v Energiebedrijf [1994] ECR I-1477, paragraph 21; and Joined Cases C-74/95 and C-129/95 X [1996] ECR I-6629.
(12) - In judgment No 298/1986 of 31 December 1986, the Italian Constitutional Court ruled on the characteristics of the extraordinary petition: `Under present legislation, the extraordinary petition to the Head of State is a unique and atypical remedy (judgments No 31/1975 and No 148/1982) which takes the form of a second-instance contentious procedure resulting in the non-judicial resolution of disputes relating to the validity of acts of the public administration. Its administrative nature is offset by its distinctive characteristics and clear parallels with and links to judicial proceedings; while its end result, a decision in the form of a Presidential Decree, cannot be regarded as equivalent to the acts formally or substantively adopted by the courts (or "parajudicial" acts), nor can it be defined as an act of active administration in so far as it is concerned exclusively with the application of objective law (or, in any event, with satisfying a different public interest from those assigned to each administration), and is accordingly different from all ordinary applications to the administrative authorities'. There are no italics in the original.
(13) - The members of the Italian Consiglio di Stato do not serve in the advisory and judicial sections simultaneously but rotate between them.
(14) - Greis Unterweger [1986] ECR 955, paragraph 4.
(15) - The grounds on which the Court made its decision were as follows: `[$] the Consultative Commission is an agency of the Italian Treasury Ministry; [that] its duty is to submit reasoned opinions on the sanctions to be imposed by the Treasury Minister on persons infringing the Italian legislation relating to transfers of foreign exchange; [that] it is composed of a judge, as chairman, and several high-ranking officials; [that] the relevant rules do not require the Consultative Commission to conduct hearings where the person concerned or his counsel may put forward his point of view; [that] the person concerned has no right to bring a matter before the Consultative Commission, which sits solely at the request of the public authorities who have established that the law has been infringed; and [that] the opinion submitted by the Consultative Commission is not binding on the Minister, who is free to decide whether or not to follow it. In addition, it is necessary to point out that the sanctions imposed by the Treasury Minister after consulting the Consultative Commission may be challenged by the persons concerned before the ordinary courts and tribunals which have unlimited jurisdiction in the matter.'
(16) - [1973] ECR 1299.
(17) - Ibidem [1973] (ECR 1318).
(18) - The final decision was in fact taken by the competent Minister, who could depart from the opinion of the Raad van State only with the consent of the Minister for Justice or, failing that, of the Prime Minister.
(19) - In his article `Ricorso Straordinario e interpretazione della normativa comunitaria' (Giornale di diritto amministrativo, No 1/1997, p. 69 et seq.), Aldo Sandulli makes it clear that the extraordinary petition fits into the complex system of judicial protection available to the addressees of administrative acts: a detailed examination of that system reveals what he considers to be a `high degree of similarity between the extraordinary petition procedure and the ordinary procedures for challenging administrative acts'.
(20) - See, at the end of footnote 12, the findings of the Italian Constitutional Court in this respect.
(21) - Case 246/80 [1981] ECR 2311, paragraph 8 et seq.
(22) - The Italian Government stated, in reply to a question put to it by the Court of Justice, that all the petitioners obtained their qualifications in Italy.
(23) - The preamble to Directive 93/16 cites as its legal basis `[$] the Treaty establishing the European Economic Community, and in particular Article 49, Article 57(1) and (2), first and third sentences, and Article 66 thereof'.
(24) - See, in this connection, the recent judgment in Case C-134/95 USSL No 47 di Biella [1997] ECR I-195).
(25) - Coordination of the conditions governing exercise of the medical professions in the various Member States is, in the words of Article 57(3) of the Treaty, a condition on which the progressive abolition of restrictions on their exercise depends.
(26) - Article 2 provides: `Each Member State shall recognize the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 23 and which are listed in Article 3, by giving such qualifications, as far as the right to take up and pursue the activities of a doctor is concerned, the same effect in its territory as those which the Member State itself awards.'
(27) - Article 9(1) provides: `[...] in the case of nationals of Member States whose diplomas, certificates and other evidence of formal qualifications in medicine do not satisfy all the minimum training requirements laid down in Article 23, each Member State shall recognize, as being sufficient proof, the diplomas, certificates and other evidence of formal qualifications in medicine awarded by those Member States when they attest to training which commenced before [$] accompanied by a certificate stating that those nationals have effectively and lawfully been engaged in the activities in question for at least three consecutive years during the five years prior to the date of issue of the certificate.'