Planned closure of complaint CHAP 2010/2398
Date: 2010-11-23
Institutions: European Commission
Subjects: Italy, complaint to the Commission, free movement of workers, national implementing measure, pay, physician, recognition of vocational training qualifications, scientific profession








C_2010318EN.01000401.xml










23.11.2010   


EN


Official Journal of the European Union


C 318/4





Planned closure of complaint CHAP 2010/2398
2010/C 318/04






1.


The European Commission has received and registered under CHAP 2010/2398 a multiple complaint about the non-remuneration of doctors undergoing specialised medical training in Italy and the remuneration paid to those undergoing specialised medical training from 1991-92 until the academic year 2006-07.










2.


The Commission departments will be proposing that the case be closed; given the significant number of complaints it has received on this subject, the Commission, which is anxious to respond swiftly and to inform those concerned while making the most economical use of its administrative resources, is publishing this notice of the proposal to close the complaint in the Official Journal of the European Union and on the Internet at: http://ec.europa.eu/community_law/complaints/multiple_complaints/index_en.htm










3.


The issue is whether the Italian legislation complies with the acquis communautaire as regards Article 25(3) of Directive 2005/36/EC, which states that specialist medical training posts must be appropriately remunerated (this incorporates a provision in Annex I to Directive 93/16/EEC to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications; that Directive was repealed and replaced by Directive 2005/36/EC).










4.


The Commission departments have completed their investigation of complaint CHAP 2010/2398 regarding the remuneration of doctors who were undergoing specialised training in Italy between 1982 and 1991 and between 1991 and 2007.










5.


Following examination of the complaint and of the documentation submitted by the complainants from the point of view of the applicable Community law, the Commission departments have concluded that it is not possible, at this stage, to identify any infringement of Directive 93/16/EC or of Directive 2005/36/EC in the case in question.










6.


Directive 93/16/EEC states that trainee specialist doctors must receive appropriate remuneration during the training period. This obligation arises specifically from Directive 82/76/EEC which amended Directive 75/363/EEC; both directives were consolidated by Directive 93/16/EEC, which was in turn repealed and replaced by Directive 2005/36/EC.










7.


The deadline for transposing Directive 82/76/EEC was 1 January 1983. In its judgment of 7 July 1987 in Case 49/86 Commission v Italy, the Court of Justice of the European Union acknowledged that Italy had failed to comply with its obligations by not transposing Directive 82/76/EEC by the prescribed deadline. By Legislative Decree No 257/1991 adopted in 1991 (which entered into force on 1 September 1991), Italy did transpose the Directive, but limited the right to remuneration to the academic year 1991/92 and subsequent years. In the judgments handed down in preliminary rulings C-131/97 Carbonari and C-371/97 Gozza, the Court considered that the damage suffered by specialist doctors registered between academic years 1983/84 and 1990/91 could be compensated by retrospectively applying national rules on remuneration, with the national court refraining from applying national rules that ran counter to the Directive (the rules limiting the right to remuneration to 1991/92 and subsequent years).










8.


Since several specialist doctors had registered before the academic year 1991/92, proceedings were brought before civil and administrative courts in Italy to obtain damages. In the judgments delivered on 25 February 1994 by the regional court of Lazio, Section 1a, the court admitted the appeals: ‘Legislative Decree No 257 of 8 August must not be applied by the national courts since this decree confines the application of Community law to those doctors accepted for specialist training in the 1991/92 academic year, leaving the previous training programme for specialist doctors in place’.










9.


Notwithstanding this judgment, Italy refused to provide appropriate payment to trainee specialist doctors before the 1990/91 academic year, opting instead to adopt a law, Law No 370 of 19 October 1999, Article 11 of which states that a grant of ITL 13 000 000 should be paid to each doctor who followed specialist training during the period 1983-91 provided that they were personally covered by the judgment. A ministerial decree specified the procedures for applying for these grants. Some doctors challenged this ministerial decree, which led to a ruling recognising that doctors who had followed specialist training and had been registered before the 1991/92 academic year were entitled to damages.










10.


According to the complainants, doctors who have followed specialised training since the deadline for transposition of the Directive in question (31 December 1982) and who were registered in the training programme prior to the 1991/92 academic year are currently being deprived of their entitlement to damages because of the late and incomplete transposition of the Directive by Italy. The Commission departments understand that the current complainants are criticising Italy for not having amended the relevant Italian regulations.










11.


Having received other similar complaints from Italian doctors concerning this matter, the Commission departments have examined the Italian case law and have found that the principles laid down by the Court of Justice of the EU in its rulings in Cases C-131/97 Carbonari and C-371/97 Gozza have been fully respected by the national court. The national courts have accepted the principle of the retrospective application of entitlement to remuneration by not applying the national rules that were contrary to Directive 82/76/EEC (Article 8 of Legislative Decree No 257/1991 which limits entitlement to remuneration to the 1991/92 academic year and subsequent years) and have recognised entitlement to remuneration and, therefore, to reparation for the damage suffered. Notwithstanding this, in some cases the national courts have refused reparation for the damage suffered because of the time limit for bringing a case based on the national law applicable. This decision does not appear to infringe Community law as interpreted by the Court of Justice of the EU, in particular in the judgment of 5 March 1996 in Cases C-46/93 and C-48/93 Brasserie du pêcheur and Factortame, which states that in the absence of relevant Community provisions on the reparation of damage suffered by private individuals, it is for the domestic legal system of each Member State to set the criteria for determining the extent of reparation. However, those criteria must not be less favourable than those applying to similar claims based on domestic law (paragraph 83 of the judgment of 5 March 1996). In the present case the application of domestic law complies with this principle.










12.


The complainants then state that the remuneration paid during the period from 1991 to 2007 should have been paid to the doctor as an employee. The Commission departments’ view is that Directive 93/16/EEC merely stipulated that an appropriate remuneration must be paid, without specifying the status to which the doctor undergoing specialised training should be entitled. As a result, in the opinion of the Commission departments, the Italian authorities were entitled to pay a grant and were thus not obliged to confer the status of employee.










13.


Consequently, the Commission departments will propose to the Commission that the complaint case be closed.










14.


This does not preclude the case being reopened and proceedings being re-initiated should the Commission come into possession — even after closure — of new facts that could justify opening fresh proceedings regarding the same subject.