Joined Cases C-10/02 and C-11/02

Anna Fascicolo and Others

v

Regione Puglia and Others

and

Grazia Berardi and Others

v

Azienda Unità Sanitaria Locale BA/4 and Others

(References for a preliminary ruling by the Tribunale amministrativo regionale per la Puglia)

(Free movement of doctors – Directives 86/457/EEC and 93/16/EEC – Recognition of diplomas, certificates and other evidence of formal qualifications – Requirement that Member States should make the exercise of the activities of general practitioner under their national social security scheme conditional on possession of a specific diploma – Acquired rights – Whether evidence of authorisation obtained before 1 January 1995 is equivalent to the specific training diploma – Drawing up of the list of general practitioners in order to fill posts available in a region on the basis of the qualifications possessed)

Summary of the Judgment

Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Doctors – Recognition of diplomas and other evidence of formal qualifications – Directive 93/16 – General practitioners – Requirement that Member States should make the exercise of the activities of general practitioner under their national social security scheme conditional on possession of a specific diploma – Limits – Acquired rights of doctors not in possession of a specific diploma but who have exercised their right of establishment before 1 January 1995 – Extent – No requirement that Member States should consider acquired rights to be equivalent to obtaining a specific diploma – Granting of advantages to doctors in possession of a specific diploma and of acquired rights – Whether permissible

(Council Directive 93/16, Art. 36(2))

The first paragraph of Article 36(1) of Directive 93/16 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications provides that, as from 1 January 1995, and subject to the acquired rights it has recognised, each Member State is to 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 awarded on completion of the specific training in general medicine practice that each Member State dispensing within its territory the complete training governing access to and pursuit of a medical profession is to institute in accordance with Article 30 of that directive.

Article 36(2) provides that every Member State is to specify acquired rights, subject to only one condition, namely, that it should recognise the acquired rights of those doctors who do not hold such a diploma, certificate or other evidence of formal qualification but who, before 1 January 1995, were recognised in that Member State as having a diploma, certificate or other evidence of formal qualification issued to them in another Member State and who, also before that date, obtained the right to exercise the activities of general medical practitioner under the national social security scheme.

That provision does not, however, require that the Member States should accord the same weight to acquired rights as to the obtaining of the certificate of specific training in general medical practice. It does not, consequently, require the Member States to consider authorisation obtained before 1 January 1995 to carry on the profession of general medical practitioner under the national health system to be equivalent to obtaining the certificate of specific training in general medical practice.

Thus, the mere fact that holders of the certificate of specific training in general medical practice, on the one hand, and persons in possession of the equivalent qualification only, on the other, did not, with regard to the allocation of doctors’ posts, enjoy an equal chance of success is not contrary to the abovementioned provision.

In particular, it is not contrary to Article 36(2) for Member States to provide for doctors in possession of both that certificate and authorisation:

– a pool of reserved posts more extensive than that provided either for doctors in possession of that certificate or for doctors who have been granted authorisation, by permitting them to compete in those two classes of reserved posts simultaneously;

– yet more advantageous treatment by awarding them, when they compete for the quota of posts reserved to doctors authorised on 31 December 1999 to practise the profession, the number of additional points attributed on account of their having obtained that certificate.

(see paras 30-31, 34-35, 45, operative part 1-2)