OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 1 April 2004

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



Anna Fascicolo and Others

Grazia Berardi and Others

v

Regione Puglia and Others



and



Azienda Unità Sanitaria Locale BA/4 and Others





(Reference for a preliminary ruling from the Tribunale Regionale per la Puglia (Puglia Regional Court))





Anna Fascicolo and Others

Grazia Berardi and Others

v

Regione Puglia and Others



and



Azienda Unità Sanitaria Locale BA/4 and Others





(Reference for a preliminary ruling from the Tribunale Regionale per la Puglia (Puglia Regional Court))

(Directive 86/457/EEC and Directive 93/16/EEC – Recognition of diplomas, certificates and other evidence of formal qualifications – Practice of the activities of a general practitioner under a national social security scheme – Equivalence of acquired rights with evidence of special training – Compilation of a ranking list of general medical practitioners for unfilled posts in a region)

‘(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).

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?’

– 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. 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.

– Original language: German.

– OJ 1993 L 165, p. 1.

– OJ 1986 L 267, p. 26.

– Judgment in Joined Cases C-69/96 to C-79/96 Garofalo and Others [1997] ECR I‑5603, paragraph 31.

– Cf. Opinion of Advocate General Ruiz-Jarabo Colomer in Garofalo [1997] ECR I‑5605, point 46 et seq.

– Cf. judgment in Case C-25/02 Rinke [2003] ECR I‑0000, paragraph 38.

– 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.

– As also the Rinke judgment (cited in footnote 6, paragraph 38).

– On indirect sex discrimination see the Rinke judgment (cited in footnote 6). Interference with freedom of profession is also to be justified.

– .Garofalo judgment (cited in footnote 4, paragraph 31).