Opinion of Mr Advocate General Léger delivered on 11 May 2000. - Cinzia Gozza and Others v Università degli Studi di Padova and Others. - Reference for a preliminary ruling: Tribunale civile e penale di Venezia - Italy. - Right of establishment - Freedom to provide services - Doctors - Medical specialties - Training periods - Remuneration - Direct effect. - Case C-371/97.



European Court reports 2000 Page I-07881



Opinion of the Advocate-General

1. In this case, the Tribunale Civile e Penale di Venezia (Civil and Criminal District Court, Venice, Italy) is asking the Court of Justice to state whether the provisions of Directives 75/362/EEC and 75/363/EEC, as amended by Directive 82/76 EEC, under which trainee specialist doctors are entitled to appropriate remuneration throughout their period of full-time or part-time training, have direct effect.

2. The Court has already replied in part to that question in its judgment in Carbonari. In that case, the Court had to decide whether the provisions of the abovementioned directives concerning entitlement to remuneration were sufficiently precise and unconditional so as to confer rights directly on the individuals invoking them where training was undertaken full-time.

3. The Court is asked to determine whether the solution it adopted in Carbonari can be applied to a situation where some of the applicants are undertaking part-time training.

I - Legal background

A - Community law

1. The relevant provisions of the abovementioned directives

4. The recognition directive concerns the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine and includes measures to facilitate the effective exercise of the right of establishment and the freedom to provide services.

5. The recognition directive draws a distinction between diplomas, certificates and other evidence of formal qualifications in specialised medicine depending on whether they are common to all Member States or only to two or more Member States. Recognition of the former is automatic if, in accordance with Article 4 of the recognition directive, their holders have undertaken training which meets the minimum requirements laid down by the coordination directive. For the latter, Article 6 provides that recognition is automatic between the relevant States, provided that their holders have undertaken training which meets the requirements laid down in the coordination directive.

6. The coordination directive is designed to coordinate certain laws, regulations and administrative provisions relating to the activities of doctors, while [leaving] the Member States freedom of organisation as regards teaching.

7. The coordination directive introduces some harmonisation of conditions relating to training and access to the various medical specialties, with a view to mutual recognition of diplomas, certificates and other evidence of formal qualifications in specialised medicine and in order to put all members of the profession who are nationals of the Member States on an equal footing within the Community. However, those minimum criteria ... concerning the right to take up specialised training, the minimum training period, the method by which such training is given and the place where it is to be carried out, as well as the supervision to which it should be subject ... only concern the specialities common to all the Member States or to two or more Member States.

8. The recognition and coordination directives were amended by Directive 82/76, whose aim, clearly set out in the third recital in the preamble, is to define a new stricter system for part-time training of medical specialists. Directive 82/76 also makes various technical amendments to the recognition and coordination directives, which had become necessary as a result of changes to the national legislation of the Member States and experience gained during the first years of implementation.

9. Those directives were repealed and replaced by Directive 93/16/EEC which does not alter their main provisions: its intention is that, for reasons of clarity and rationality, [they] should be consolidated and grouped together in a single text.

10. Under Article 1 of the coordination directive, Member States must require persons wishing to take up and pursue a medical profession to hold a diploma, certificate or other evidence of formal qualification in medicine specified in Article 3 of the recognition directive, thus guaranteeing that during his complete training period the individual concerned has acquired the minimum knowledge laid down in Article 1(1)(a) to (d) of the coordination directive.

11. Article 2(1) of the coordination directive, as amended by Directive 82/76, sets out the requirements to be met by training leading to a diploma, certificate or other evidence of formal qualifications in specialised medicine. In particular, that training is to be a full-time course supervised by the competent authorities or bodies pursuant to point 1 of the annex. Furthermore, the training must take place in a university centre, in a teaching hospital or, where appropriate, in a health establishment approved for this purpose by the competent authorities or bodies.

12. Under Article 2(3) of the coordination directive, the Member States are to designate the authorities or bodies competent to issue the diplomas, certificates and other evidence of formal qualifications referred to in Article 2(1).

13. Article 3 of the coordination directive, as amended by Directive 82/76, allows Member States to permit part-time specialist training. However, that article requires certain conditions to be met. Part-time training may be permitted only when training on a full-time basis would not be practicable for well-founded individual reasons. Also, such part-time training is to be given in accordance with point 2 of Annex I and at a standard qualitatively equivalent to full-time training. Nor is this standard to be impaired, either by the part-time nature of the training or by the practice in parallel of private, remunerated professional activity. Finally, the total duration of specialised training may not be curtailed in those cases where it is organised on a part-time basis.

14. Points 1 and 2 of the annex which was added to the coordination directive by Directive 82/76 provide as follows:

Characteristics of the full-time and part-time training of specialists

1. Full-time training of specialists

Such training shall be carried out in specific posts recognised by the competent authority.

It shall involve participation in all the medical activities of the department where the training is carried out, including on-call duties, so that the trainee specialist devotes to this practical and theoretical training all his professional activity throughout the duration of the standard working week and throughout the year according to provisions agreed by the competent authorities. Accordingly these posts shall be subject to appropriate remuneration.

Training may be interrupted for reasons such as military service, secondment, pregnancy or sickness. The total duration of the training shall not be reduced by reason of any interruption.

2. Part-time training of specialists

This training shall meet the same requirements as full-time training, from which it shall differ only in the possibility of limiting participation in medical activities to a period at least half of that provided for in the second paragraph of point 1.

The competent authorities shall ensure that the total duration and quality of part-time training of specialists are not less than those of full-time trainees.

Appropriate remuneration shall consequently be attached to such part-time training.

15. Articles 4 and 5 of the coordination directive set the minimum length of the specialist training courses leading to diplomas, certificates or other evidence of formal qualifications referred to in Articles 5 and 7 of the recognition directive and which are common to all the Member States or to two or more of them.

16. Finally, Article 16 of Directive 82/76 provides that the Member States are to take the necessary measures to comply with that directive by 31 December 1982.

2. The Court's previous decisions

17. With regard to the persons entitled to the rights conferred by the recognition and coordination directives, as amended by Directive 82/76, and specifically the right of trainee medical specialists to receive remuneration, the Court has consistently held that the requirement to provide remuneration for the periods of training in specialised medicine, laid down in Article 2(1)(c) of the "coordination" directive, applies only to medical specialties which are common to all the Member States or to two or more Member States and are mentioned in Article 5 or Article 7 of the "recognition" directive.

B - National law

1. Italian legislation

18. The recognition directive and the coordination directive were transposed into Italian domestic law by Law No 217 of 22 May 1978.

19. However, by judgment of 7 July 1987 in Commission v Italy, the Court declared that by failing to adopt within the prescribed period the provisions necessary to comply with Directive 82/76, the Italian Republic had failed to fulfil its obligations under the Treaty.

20. Following that judgment, Directive 82/76 was transposed by Legislative Decree No 257 of 8 August 1991.

21. Article 4 of Legislative Decree No 257 determines the rights and obligations of trainee medical specialists and Article 6 establishes a study bursary for them.

22. Article 6(1) states: Those admitted to specialised schools within the limits laid down by the programming referred to in Article 2(2), in connection with a full-time engagement for their training, shall receive, throughout the duration of the course, excluding periods when the specialisation is suspended, a study bursary which in 1991 shall be ITL 21 500 000. From 1 January 1992, this amount shall be increased annually on the basis of the anticipated rate of inflation and shall be revised every three years by decree made by the Minister for Health ... on the basis of the improvement in the minimum wage scale applicable to the contracts of salaried medical staff employed by the national health service.

23. Finally, Article 8(2) of Legislative Decree No 257 states that its provisions are to apply from the 1991/92 academic year.

2. Application of the Italian legislation

24. It is common ground that the provisions of Directive 82/76 obliging Member States to grant trainee medical specialists appropriate remuneration were implemented by the Italian Republic by Article 6 of Legislative Decree No 257 and that that provision has been interpreted as meaning that the study bursary it established does not apply, even after the 1991/92 academic year, to trainee medical specialists registered in the various specialist schools before 1991/92.

II - Facts and Procedure

25. Cinzia Gozza and 23 other graduates in medicine (hereinafter the applicants), who were registered in the specialist school of anaesthetics and resuscitation in the faculty of medicine of the University of Padua for the 1990/91 academic year, were unable to receive the study bursary established by Legislative Decree No 257 from the beginning of their training. In August 1991, they brought an action before the Pretore di Padova (Magistrates' Court, Padua), in its capacity as a labour court, seeking recognition of their right to appropriate remuneration for the specialist courses they were attending.

26. Following a number of procedural matters, which had caused the Corte Suprema di Cassazione (Supreme Court of Cassation) to intervene to resolve an issue as to jurisdiction, the case came before the referring court in its capacity as foro erariale (a court dealing with issues of public finance). The Corte Suprema di Cassazione had ruled out in this case the existence of any employment relationship - whether public or private, subordinate or quasi-subordinate - requiring the dispute to be dealt with by another judicial body acting as a labour court.

27. By application dated 14 March 1996, the doctors - whose number had increased from 24 to 636 following the various phases of the procedure - resumed proceedings before the Tribunale Civile e Penale di Venezia.

28. The applicants, all of whom are graduates in medicine and surgery, stated that they had been registered in various specialist schools attached to the University of Padua and sought recognition of their right to appropriate remuneration in accordance with the recognition and coordination directives and Directive 82/76; they accordingly applied for an order requiring the University of Padua and the other defendants - the Ministry for Universities, the Ministry of Health and the Ministry of Education - to pay the sums owing, the precise amount of which was to be quantified in the course of the proceedings.

29. The defendants opposed the claims, arguing that the directives in question could not be directly effective because they did not identify the person liable to pay the appropriate remuneration and, in particular, failed to define criteria for determining that remuneration. It therefore fell to other sources of laws, namely the implementing legislation of each Member State, to define those criteria.

30. The defendants also pointed out that Article 6 of Legislative Decree No 257, the measure by which the Italian Republic fulfilled its obligation under Community law to pay appropriate remuneration, did not create any disparity in treatment between trainee medical specialists who registered prior to the 1991/92 academic year (such as the applicants) - to whom the new rules did not apply - and those who registered after that year - to whom, in contrast, the rules did apply. Unlike trainees who registered after 1991/92, trainees who registered before then, such as the applicants, were not in any way required to work on a full-time basis or to provide an undertaking not to pursue an occupation. However, the defendants acknowledge that the applicants undertook part-time specialist training.

31. Taking the view that the outcome of the case depended on the interpretation of the directives at issue, the Tribunale Civile e Penale di Venezia stayed proceedings by order of 7 October 1997 and referred the following questions to the Court of Justice for a preliminary ruling:

(1) Does the provision in Directive 82/76/EEC under which both full-time and part-time training in specialist medicine is to be subject to "appropriate remuneration" fall to be construed, even for the period during which no specific rules were adopted by the Italian State, as having direct effect for trainee medical specialists, so as to confer on them an unrestricted right, as against the competent authorities of the State, to receive appropriate remuneration corresponding to the work performed in the course of their professional training?

(2) If the existence of the aforementioned right is recognised, what are the

criteria for determining "appropriate remuneration" with regard to both

full-time and part-time training activities?

III - Appraisal

A - Admissibility of the questions referred

32. In its written observations, the Spanish Government has maintained that the questions submitted by the national court are inadmissible because the facts are incomplete. It states that the Court has consistently held that the obligation laid down in Article 2(1)(c) of the coordination directive to provide remuneration for the periods of training in specialised medicine applies only to specialties which are common to all the Member States or to two or more of them and are mentioned in Article 5 or 7 of the recognition directive. However, in the present case, the referring court failed to specify the precise nature of the medical specialties pursued by the applicants.

33. It is true that the order for reference does not provide the facts which would enable the Court to give a complete answer to the national court. However, the absence of that information does not appear to be such as to preclude the Court from replying to the questions referred for a preliminary ruling. It is sufficient to observe that the recognition and coordination directives list very precisely, for the specialist training courses concerned, both the designations in force in the Member States and the authorities or bodies competent to issue the diplomas, certificates and other evidence of formal qualifications corresponding to the specialties in question.

34. It is therefore for the national court to determine, amongst the applicants in the main proceedings, which belong to the category of doctors on one of those specialist training courses who, under the "coordination" directive, as amended by Directive 82/76, enjoy the right to appropriate remuneration during their training period.

35. Whilst not disputing that the questions have been referred for a preliminary ruling by a court or tribunal within the meaning of Article 177 of the EC Treaty (now Article 234 EC), the Italian Government submits that the Court should declare the questions inadmissible on the ground that they are from a court which, under the Italian rules of procedure, is not called upon (or is not yet called upon) to rule on the substance of the case.

36. In that regard, according to settled case-law, in the context of the division of jurisdiction between the Court of Justice and the national courts which results from Article 177 of the Treaty, the national court is better placed to assess both the expediency and the relevance of the questions it refers to the Court in order to be able to resolve the dispute before it.

37. Also, it is not for the Court of Justice, in view of the distribution of functions between itself and the national courts, to determine whether the decision whereby a matter is brought before it has been taken in accordance with the rules of national law governing the organisation of the courts and their procedure.

38. It follows from the foregoing that the questions referred to the Court are admissible.

B - The answer

1. Preliminary observations

39. By its questions, the referring court is essentially asking whether, in the absence of implementation within the time-limit of the provisions relating to the obligation to provide appropriate remuneration for full-time and part-time specialised training, the content of those provisions is unconditional and sufficiently precise for trainee specialists to be entitled to rely on that obligation, as against the authorities of a Member State, before a national court.

2. The obligation to provide remuneration for full-time training

40. With regard to full-time training, the Court has, following a full and detailed analysis of the relevant Community legislation and of the Italian implementing legislation in issue - which is absolutely identical to the national legislation to which the referring court in the present case is subject - already provided the national courts with all the criteria necessary for resolving this type of dispute.

41. It is therefore for those courts to apply to cases brought before them the rules of Community law as interpreted by the Court in Carbonari.

42. In that case, the Court ruled that in principle the obligation to remunerate a full-time trainee medical specialist has direct effect.

The Court held that Article 2(1)(c) of the "coordination" directive and point 1 of the annex thereto, as amended by Directive 82/76, impose an obligation on Member States, in respect of doctors liable to benefit from the system of mutual recognition, to provide remuneration for periods of training in medical specialties in so far as they fall within the scope of the directive. That obligation is, in itself, unconditional and sufficiently precise.

43. The Court stated that it follows from an analysis of the general scheme of the coordination and recognition directives and Directive 82/76 that the obligation to provide remuneration for periods of training in medical specialties is ... entirely linked to fulfilling the requirements for training in specialised medicine which themselves enable the Member States to undertake the mutual recognition of diplomas, certificates and other evidence of formal qualifications in specialised medicine in accordance with the "recognition" directive and that it is for the Member State in which the training in specialised medicine is undertaken [to] guarantee that that training fulfils all the requirements laid down in the "coordination" directive and Directive 82/76 and that the trainee specialists receive remuneration.

44. In addition, the Court pointed out that the obligation to provide remuneration for full-time training periods ... applies only to medical specialties which are common to all the Member States or to two or more Member States and are mentioned in Article 5 or Article 7 of the "recognition" directive and that those articles list, for the specialist training courses concerned, both the designations in force in the Member States and the competent authorities or bodies.

45. Accordingly, in order to establish whether that entitlement should be granted to trainee doctors, the Court invited the referring court to make some investigations.

46. Firstly, the Court stated that it was for the referring court to ascertain whether the doctors [belonged] to the category of doctors on one of [the] specialist training courses [listed in Articles 5 and 7 of the "coordination" directive, as amended by Directive 82/76].

47. Secondly, the Court stated that it was also for the referring court to check that that training was carried out in accordance with the requirements of the coordination directive, as amended by Directive 82/76.

The Court found that point 1 of the annex to the "coordination" directive as amended by Directive 82/76, is explicit and unconditional in requiring participation in all the medical activities of the department where the training is carried out, including on-call duties, so that the trainee specialist devotes to this practical and theoretical training all his professional activity throughout the duration of the standard working week and throughout the year. The Court also observed that, although point 1 requires that the rules be determined by the competent authorities, the requirements of full-time training listed under that point [were] sufficiently precise to enable the national court to determine which of the applicants in the main proceedings belonging to the category of trainee specialists fulfilled the requirements of full-time training in specialised medicine in accordance with the "coordination" directive and Directive 82/76 prior to the academic year 1991/92.

48. However, inasmuch as the coordination directive and Directive 82/76 do not contain any indication as to which institution bears the obligation to pay appropriate remuneration, the Community definition of what is meant by appropriate remuneration or the method of setting that remuneration, the Court concluded that Article 2(1)(c) of the "coordination" directive and point 1 of the annex thereto, as amended by Directive 82/76, are not, in that respect, unconditional [since] they do not enable the national court to determine the body liable to pay the appropriate remuneration or the level thereof.

49. In accordance with the principles which it has identified concerning the task assigned to it by Article 177 of the Treaty, the Court, going beyond the questions formally referred, reminded the referring court that the principle of primacy could overcome the obstacles connected with the fact that it was not possible to apply the principle of direct effect in the case in point. The Court also observed that the principle of primacy presupposed compliance with certain requirements.

50. First, the Court stated that, in applying national law and in particular the provisions of a law which, as in the main proceedings, were specifically introduced in order to implement a directive, the national court is required to interpret its national law, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby to comply with the third paragraph of Article 189 of the EC Treaty. Therefore, with regard to Legislative Decree No 257, the Court invited the referring court to determine to what extent all provisions of national law, and more specifically, for the period after their entry into force, the provisions of a law adopted in order to implement Directive 82/76, can be interpreted after the date of entry into force of those provisions in the light of the wording and the purpose of that directive in order to achieve the result pursued by it.

51. The Court stated that, if the result prescribed by the coordination directive could not be achieved by interpreting national law in conformity with the directive, the applicants who had suffered a loss could consider bringing an action for damages against the defaulting State provided that the conditions for bringing such an action were fulfilled.

52. Finally, the Court stated that a third outcome could also be envisaged.

The Court pointed out that retroactive application in full of the measures implementing a directive enables the harmful consequences of its belated transposition to be remedied, provided that the directive has been properly transposed. However, it is for the national court to ensure that reparation of the loss or damage sustained by the beneficiaries is adequate. Retroactive and proper application in full of the measures implementing the directive will suffice for that purpose unless the beneficiaries establish the existence of complementary loss sustained on account of the fact that they were unable to benefit at the appropriate time from the financial advantages guaranteed by the directive with the result that such a loss must also be made good.

3. The obligation to provide remuneration for part-time training

53. In my view, the Court's analysis with regard to medical specialists undertaking full-time training and the conclusions it reached in Carbonari are entirely applicable to medical specialists undertaking part-time training.

54. It follows both from the aims and from the wording of the coordination directive and Directive 82/76 that part-time training in specialised medicine meets the same qualitative and quantitative requirements as those imposed on full-time trainee medical specialists.

55. Point 2 of the annex to the coordination directive, as amended by Directive 82/76, lays down clearly, precisely and unconditionally that such training shall differ [from full-time training] only in the possibility of limiting participation in medical activities to a period of at least half of that provided for in the second subparagraph of point 1 and that the competent authorities shall ensure that the total duration and quality of part-time training of specialists are not less than those of full-time trainees.

In other words, part-time training allows doctors to organise their specialised training over a longer period.

56. The third subparagraph of point 2 of the aforementioned annex also expressly provides that if the conditions laid down in the second subparagraph are fulfilled, appropriate remuneration must be attached to part-time training.

57. Accordingly, since part-time training merely entails adjustments to the means of acquiring specialised medical training, by a different temporal allocation of the instruction which has to be given to full-time trainee specialists, I cannot see why the Court should reach different conclusions from those drawn by it in Carbonari.

Conclusion

58. I therefore propose that the Court should give the following reply to the question referred by the Tribunale Civile e Penale di Venezia:

On a proper construction of Article 2(1)(c) of Council Directive 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 and point 1 of the annex to that directive, and of Article 3(1) and (2) of Directive 75/363 and point 2 of the annex thereto, as amended by Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363 (subsequently repealed and replaced by 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):

- the obligation to provide appropriate remuneration for periods of training in specialised medicine is binding only in respect of the medical specialties which are common to all the Member States or to two or more of them and are mentioned in Article 5 or Article 7 of Council Directive 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 right of establishment and freedom to provide services;

- that obligation is binding only if the conditions for full-time training set out in point 1 of the annex to Directive 75/363, amended by Directive 82/76 and replaced by Directive 93/16, or those for part-time training, set out in point 2 of the annex to Directive 75/363, amended by Directive 82/76 and replaced by Directive 93/16, are complied with by the trainee medical specialists;

- that obligation is unconditional and sufficiently precise in so far as it requires, for a medical specialist to be able to benefit from the system of mutual recognition established by Directive 75/362, that his training be full-time or part-time and remunerated;

- that obligation in itself does not, however, enable the national court to determine which body is liable to pay the appropriate remuneration or the level thereof.

The national court is required, however, when it applies provisions of national law adopted either before or after a directive, to interpret them as far as possible in the light of the wording and the purpose of that directive.