WRITTEN QUESTION E-2699/02 by Manuel Pérez Álvarez (PPE-DE) to the Commission. Obstacles to the free movement of medical professionals.
Date: 2002-09-26
Institutions: European Parliament, Provisional data
Subjects: Portugal, Spain, free movement of persons, health care profession, job access, public administration

C 52 E/202

Official Journal of the European Union

EN

6.3.2003

(2003/C 52 E/224)

WRITTEN QUESTION E-2699/02

by Manuel Pérez Álvarez (PPE-DE) to the Commission

Subject: Obstacles to the free movement of medical professionals

(26 September 2002)

A number of young Spanish medical graduates have in recent years been doing the final stage of their
academic and clinical training as public health supplementary interns and assistant doctors in Portugal
(the Saúde Pública do internato complentar e médicos assistentes de Saúde Pública en Portugal) in Oliveira
do Douro, Viana do Castelo, Paredes, Sta. Maria da Feira, Vila do Conde, Caminha, Braga, Melgaço, Chaves,
Moncao and Campanha.

including specific training in working as health
Once they have finished their education and training,
authority employees (Portaria No 327/96 of 2 August), however, they find themselves prevented from
obtaining appointments as ‘Autoridades de Saúde’ because they are foreigners.

At the same time, according to my information, there exists on the one hand some evidence that non-
Portuguese citizens are holding jobs as health authority doctors, and on the other, evidence that doctors
without specific training are occupying such posts, even if only on temporary basis.

Is the Commission aware of
profession, in a neighbouring country, where they have carried out their specialist professional training?

these medical professionals seeking to exercise their

the situation of

Does the Commission share the criterion that the so-called Autoridade de Saúde doctors should be
exclusively specialist professionals, given the definition of their work set forth in Decreto-Leo 336/96
(Diario da República 229 of 29 September 1993)?

What steps have been taken or will be taken with regard to this situation, which may constitute an
infringement of the principle of free movement of workers within the European Union?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(21 October 2002)

The Commission was not aware of the situation to which the Honourable Member refers.

As regards access by Community nationals to the public service in other Member States, Article 39(4) of
the EC Treaty establishes a derogation from the principle of free movement of workers within the
Community, laying down that ‘the provisions of this Article shall not apply to employment in the public
service’. The Court of Justice has reiterated the need for a restrictive interpretation of this derogation. In a
number of judgements, it has stated that the posts referred to by this provision are those relating to
specific public service activities, i.e. those involving the exercise of public authority and the safeguarding of
the general interests of the Member State, which also includes the interests of the public authorities.

It is for the national authorities, on the basis of the criteria laid down and under the supervision of the
Court of Justice, to assess the applicability of Article 39(4) of the EC Treaty in each particular case in
relation to the tasks and responsibilities of each specific post.

According to the information available to the Commission, the Portuguese legislation in question (Decreto-
Lei No 336/93) makes no reference to the requirement to be of Portuguese nationality in order to work for
the Portuguese health authority.

However, if such a condition were laid down in practice, it could be contrary to the criteria laid down in
the case law of the Court of Justice. The Commission would require more precise information on the
specific cases to which the Honourable Member refers in order to intervene,
if appropriate, with the
Portuguese authorities. To this end, the persons concerned could approach the Employment and Social
Affairs Directorate-General directly.

As regards the requirement for doctors in the Portuguese health authority to be exclusively specialists, each
Member State is free to organise its own public administration. The Commission cannot
therefore
intervene.