1 This request for a preliminary ruling concerns the interpretation of Article 45 TFEU and Article 7 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).
2 The request has been made in proceedings between Ms Delia and the chief executive of the Gerencia Regional de Salud de Castilla y León (Regional Health Management Board for Castilla y León, Spain) regarding the latter’s refusal to take into consideration the professional experience acquired by the individual concerned in Portugal, for the purposes of calculating her length of service in connection with the recognition of her career development.
3 Chapter I of Regulation No 492/2011 is entitled ‘Employment, equal treatment and workers’ families’. Article 7 of that regulation, which appears in Section 2 of that chapter, entitled ‘Employment and equality of treatment’, provides in paragraph 1 thereof: ‘A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.’
4 Article 44 of Ley 14/1986, General de Sanidad (General Law 14/1986 on health) of 25 April 1986 (BOE No 102 of 29 April 1986, p. 15207), in the version of that law which is applicable to the dispute in the main proceedings, defines the National Health System as follows: ‘1. All public facilities and services with responsibility for providing healthcare shall form part of the National Health System. 2. The National Health System comprises all the health services of the State administration and the health services of the Autonomous Communities, as provided for herein.’
5 Real Decreto 184/2015, por el que se regula el catálogo homogéneo de equivalencias de las categorías profesionales del personal estatutario de los servicios de salud y el procedimiento de su actualización (Royal Decree No 184/2015 establishing a uniform set of equivalencies between the occupational categories of health service staff regulated under administrative law and the procedure for updating them) of 13 March 2015 (BOE No 83 of 7 April 2015, p. 29447), in the version of that decree which is applicable to the dispute in the main proceedings, sets out a table of equivalencies between occupational categories which allows staff regulated under administrative law (‘regulated staff’) to access vacant posts in other health services, improving the quality of care and effectively guaranteeing their mobility throughout the National Health System, in accordance with the provisions of Article 43 of Ley 16/2003, de cohesión y calidad del Sistema Nacional de Salud (Law 16/2003 on the cohesion and quality of the National Health System) of 28 May 2003 (BOE No 128 of 29 May 2003, p. 20567), in the version of that law which is applicable to the dispute in the main proceedings.
6 Article 37 of Ley 44/2003, de ordenación de las profesiones sanitarias (Law 44/2003 regulating the healthcare professions) of 21 November 2003 (BOE No 280 of 22 November 2003, p. 41442), in the version of that law which is applicable to the dispute in the main proceedings (‘Law 44/2003’), which relates to the recognition of career development, provides: ‘1. The system for recognition of the career development of healthcare professionals referred to in Articles 6 and 7 hereof is hereby established. That system consists of recognising in a public, express and individualised manner the level of career development achieved by a healthcare professional in terms of knowledge, experience in care, teaching and research activities and the attainment of care and research goals in the organisation in which that professional provides his or her services. … 3. Professionals who are established or provide their services in the territory of the State shall be able to access that system voluntarily.’
7 Article 38 of Law 44/2003 covers certain general principles relating to the recognition of career development as follows: ‘1. The health authorities shall regulate the recognition of career development in respect of their own centres and establishments in line with the following general principles: … (b) To be awarded the first grade and reach higher grades, there must be a favourable assessment of the merits of the individual concerned, in the light of his or her knowledge, skills, proven continuing professional development and teaching and research activities. That assessment must also take account of the results of the care activity of the individual concerned, the quality of that activity and satisfaction of the indicators established for that purpose, as well as his or her involvement in clinical management, defined in Article 10 of Law 44/2003. …’
8 With regard to the Comunidad Autónoma de Castilla y León (Autonomous Community of Castilla y León, Spain), the applicable regime is laid down in Decreto 43/2009, por el que se regula la carrera profesional del personal estatutario de los centros e instituciones sanitarias del Servicio de Salud de Castilla y León (Decree 43/2009 governing the careers of the regulated staff of the health centres and establishments of the Castilla y León Health Service) of 2 July 2009 (BOCYL No 125 of 3 July 2009, p. 20084), in the version of that decree which is applicable to the dispute in the main proceedings (‘Decree 43/2009’), which provides in Article 6 thereof: ‘1. The recognition of career development in the Castilla y León Health Service is based on four grades. 2. The conditions required to achieve the first grade or to reach any of the higher grades are as follows. The applicant must: (a) be a permanent regulated staff member, in the occupational category in which he or she is seeking to reach the first grade or higher grades in the relevant category of the career structure, and carry out his or her duties in the Castilla y León Health Service; (b) submit an application to be awarded the first grade in the career structure or to reach any of the higher grades, within the time allowed and according to the detailed rules established in the corresponding call for applications; (c) demonstrate, as at the date of each call for applications, the number of years of professional experience, as a regulated staff member of health centres and establishments forming part of the National Health System, specified in each category of the career structure to be awarded the first grade, and the number of years specified to reach higher grades, in accordance with the following scale: i. in order to be awarded the first grade, it is necessary for the applicant to demonstrate five years of professional experience as a regulated staff member in the National Health System, in the same occupational category as that from which he or she submits an application to reach the relevant category of the career structure.’
9 By decision of 6 October 2017, the chief executive of the Regional Health Management Board for Castilla y León opened an ordinary selection procedure for long-term non-permanent staff, and a corresponding period for applications, with a view to their reaching the first grade of the system for recognition of career development in respect of the year 2010. An application to reach that first grade could be submitted only by long-term non-permanent staff members demonstrating professional experience of five years as a health staff member regulated under administrative law and/or a health staff member not regulated under administrative law in the Castilla y León Health Service, in the same occupational category as that from which the applicant applied to reach the relevant category of the career structure. Amongst the categories of regulated health staff listed in Annex 1 to that decision was that of ‘Nurse’.
10 On 26 October 2017, Ms Delia lodged an application in that category, asserting that, as at 31 December 2010, she had performed 10 years and 3 months of service in that occupational category. That service included the services provided during the period from 20 November 2000 to 25 July 2007 at the Santa María hospital in Lisbon (Portugal).
11 By decision of 25 February 2019, the chief executive of the Regional Health Management Board for Castilla y León accepted that the years of professional experience undertaken in the Spanish health system could be taken into consideration as part of the five years of professional experience required. In contrast, he refused to take into consideration the period during which the individual concerned had provided services in Portugal, on the ground that the system for recognition of career development established by the Autonomous Community of Castilla y León did not provide for that.
12 Nevertheless, that period was taken into consideration in calculating the three-yearly length-of-service increments of temporary regulated staff.
13 Ms Delia brought an administrative court action against the decisions of 6 October 2017 and 25 February 2019 in order that the period during which those services had been provided in the Portuguese national health system be taken into consideration for the purposes of calculating her length of service in connection with the recognition of her career development.
14 By judgment of 16 December 2019, the Juzgado de lo Contencioso-Administrativo no 3 de Valladolid (Administrative Court No 3, Valladolid, Spain) upheld that action. The Autonomous Community of Castilla y León then brought an appeal against that judgment before the Tribunal Superior de Justicia de Castilla y León (High Court of Justice, Castilla y León, Spain), the referring court.
15 According to that court, it could be found that the provision at issue in the main proceedings constitutes indirect discrimination and a breach of the principle of freedom of movement for workers and the principle of equal treatment. Conversely, that provision could be regarded as being based on considerations which are independent of the nationality of the workers concerned, justified by the structure and organisational principles of the National Health System and by the objectives specific to the organisation in which the health services are provided, and as being proportionate to those objectives, it being possible, in addition, to justify the differential treatment on the basis of the absence of approval criteria between the different health systems of the Member States.
16 In those circumstances, the Tribunal Superior de Justicia de Castilla y León (High Court of Justice, Castilla y León) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Do Article 45 TFEU and Article 7 of [Regulation No 492/2011] preclude a national provision such as Article 6(2)(c) of [Decree 43/2009], which prohibits the recognition of periods of service in a particular occupational category in a public health service of another Member State of the European Union? (2) If the answer to question 1 is affirmative, could the recognition of periods of service in the public health system of a Member State be made conditional on the prior adoption of general approval criteria for the career systems of staff of the health services of Member States of the European Union?’
17 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 45 TFEU and Article 7 of Regulation No 492/2011 must be interpreted as precluding national legislation on the recognition of career development in the health service of a Member State which prevents the taking into consideration, as part of the length of service of a worker, of professional experience acquired by that worker in a public health service of another Member State. That court queries, moreover, whether the absence, at EU level, of a system of prior agreement of general approval criteria in respect of health-service staff careers between the different Member States is relevant in that regard.
18 As a preliminary point, it must be noted that, in accordance with Article 168(7) TFEU, EU law does not detract from the power of the Member States to adopt provisions aimed at organising their health services. In exercising that power, however, the Member States must comply with EU law, in particular the provisions of the FEU Treaty on the freedom of establishment, which prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of that freedom in the healthcare sector (judgment of 20 December 2017, Simma Federspiel, C‑419/16, EU:C:2017:997, paragraph 33 and the case-law cited).
19 As is apparent from the order for reference, the legislation at issue in the main proceedings prohibits the taking into consideration of the period during which services were provided by the worker concerned in a public health service of another Member State, for the purposes, for that worker, of reaching a particular grade as part of the recognition of his or her career development.
20 That said, according to the Regional Health Management Board for Castilla y León, it is not only periods of work performed in other Member States of the European Union which are excluded from the calculation of length of service but also those performed in Spain in health establishments which are not functionally and organically integrated in the Spanish health service. Therefore, workers who are nationals of another Member State are not treated differently from Spanish workers as regards career development. That legislation does not prevent workers from the other Member States of the European Union from accessing the occupational category at issue in the main proceedings and is not discriminatory towards them, inasmuch as it also applies to Spanish workers.
21 In that regard, it should be noted that all the provisions of the FEU Treaty relating to the freedom of movement for persons are intended to facilitate the pursuit by nationals of the Member States of occupational activities of all kinds throughout the European Union and preclude measures which might place nationals of the Member States at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (judgment of 11 July 2019, A, C‑716/17, EU:C:2019:598, paragraph 16 and the case-law cited).
22 It is necessary to examine, in the first place, whether the legislation at issue in the main proceedings constitutes an obstacle to freedom of movement for workers, prohibited by Article 45(1) TFEU.
23 It is apparent, in that regard, from the case-law that national provisions which preclude or deter a national of a Member State from leaving his or her country of origin in order to exercise his or her right to freedom of movement constitute restrictions on that freedom, even if they apply without regard to the nationality of the workers concerned (judgment of 11 July 2019, A, C‑716/17, EU:C:2019:598, paragraph 17 and the case-law cited).
24 Moreover, Article 45 TFEU is intended in particular to prevent a worker who, by exercising his or her right of freedom of movement, has been employed in more than one Member State from being treated, without objective justification, less favourably than one who has completed his or her entire career in only one Member State (judgment of 12 May 2021, CAF, C‑27/20, EU:C:2021:383, paragraph 32 and the case-law cited).
25 The free movement of persons would not be fully realised if the Member States were able to refuse to grant the benefit of that provision to those of their nationals who have taken advantage of the provisions of EU law to acquire vocational qualifications in a Member State other than that of which they are nationals (see, to that effect, judgment of 17 December 2020, Onofrei, C‑218/19, EU:C:2020:1034, paragraph 28 and the case-law cited).
26 The Court has thus held that national legislation which does not take into consideration in full previous periods of equivalent activity completed in a Member State other than the Member State of origin of a migrant worker is likely to render less attractive the freedom of movement for workers, in breach of Article 45(1) TFEU (judgment of 23 April 2020, Land Niedersachsen (Previous periods of relevant activity), C‑710/18, EU:C:2020:299, paragraph 26 and the case-law cited).
27 Therefore, it must be observed that legislation of a Member State, such as that at issue in the main proceedings, which permits the taking into consideration only of professional experience acquired by a career-development candidate in the Spanish health services, in the same occupational category as that from which he or she applies to reach the relevant category of the career structure, is likely to deter a worker from exercising his or her right to freedom of movement laid down in Article 45 TFEU. Such a worker will be deterred from leaving his or her Member State of origin to go and work or establish himself or herself in another Member State if that deprives that worker of the possibility of having his or her professional experience acquired in that other Member State taken into consideration.
28 Thus, it must be found that Spanish migrant workers who intend to work, in the occupational category ‘Nurse’, in a health establishment or centre situated in a Member State other than the Kingdom of Spain will be deterred from doing so if the equivalent professional experience acquired by them there would not be taken into consideration in the assessment of their career development on their return to Spain.
29 In the second place, it should be recalled that Article 45(2) TFEU states that freedom of movement for workers requires the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. That provision is given specific expression in Article 7(2) of Regulation No 492/2011 which states that a worker who is a national of a Member State is to enjoy, in the territory of the other Member States, the same social and tax advantages as national workers (judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 32).
30 It should also be recalled that the principle of equal treatment laid down in both Article 45 TFEU and Article 7 of Regulation No 492/2011 prohibits not only direct discrimination on the ground of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result (judgment of 2 March 2017, Eschenbrenner, C‑496/15, EU:C:2017:152, paragraph 35 and the case-law cited).
31 In that context, the Court has stated that a provision of national law, even if it applies to all workers regardless of nationality, must be regarded as indirectly discriminatory if it is intrinsically liable to affect workers who are nationals of other Member States more than national workers and if there is a consequent risk that it will place the worker from a different Member State at a particular disadvantage, unless it is objectively justified and proportionate to the aim pursued (judgment of 10 October 2019, Krah, C‑703/17, EU:C:2019:850, paragraph 24 and the case-law cited).
32 In order for a measure to be classified as being indirectly discriminatory, it is not necessary for it to have the effect of placing at an advantage all the nationals of the State in question or of placing at a disadvantage only nationals of other Member States but not nationals of the State in question (judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 27 and the case-law cited).
33 In the present case, by refusing to take into consideration the professional experience acquired by a migrant worker in the health services of a Member State other than the Kingdom of Spain, the national legislation at issue in the main proceedings is liable to affect migrant workers more than national workers, placing the former at a particular disadvantage as they are very likely to have accrued professional experience in a Member State other than the Kingdom of Spain before joining the health services of the latter Member State. Thus, a migrant worker who has accrued relevant professional experience with employers established in a Member State other than the Kingdom of Spain and whose professional experience with those employers is of the same length as the experience accrued by a worker who has spent his or her entire career working for the corresponding Spanish health services will be placed at a disadvantage by the fact that that professional experience is not taken into consideration for the purposes, for that worker, of reaching a particular grade as part of the recognition of his or her career development (see, by analogy, judgment of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken, C‑514/12, EU:C:2013:799, paragraph 28).
34 In those circumstances, it must be held that the legislation at issue in the main proceedings constitutes a restriction on freedom of movement for workers which is prohibited, in principle, by Article 45 TFEU and Article 7(1) of Regulation No 492/2011.
35 It is settled case-law that national measures liable to hinder the exercise of fundamental freedoms guaranteed by the FEU Treaty or make it less attractive may be allowed only if they pursue an objective in the public interest, are appropriate for ensuring the attainment of that objective and do not go beyond what is necessary to attain that objective (judgment of 20 December 2017, Simma Federspiel, C‑419/16, EU:C:2017:997, paragraph 38 and the case-law cited).
36 It must be noted that the question of establishing what objectives are in fact pursued by the national legislation at issue in the main proceedings is, in the context of a case referred to the Court under Article 267 TFEU, within the jurisdiction of the referring court (judgment of 20 December 2017, Simma Federspiel, C‑419/16, EU:C:2017:997, paragraph 40 and the case-law cited).
37 In this case, that court indicates that the legislation at issue in the main proceedings pursues a public interest objective consisting of guaranteeing the objectives and organisation of the national health service. The recognition of the career development of a worker does not involve solely taking into consideration his or her length of service but also requires certain services to have been delivered in a precise occupational category and in a specific health service seeking to attain the objectives of the organisation in which those services are provided. It is difficult, however, to assess the extent to which objectives in another Member State are attained.
38 According to the Regional Health Management Board for Castilla y León, since the duties specific to the occupational category in which the relevant services are provided are assessed for the purposes of the recognition of career development, and duties performed outside the Spanish health system may meet quality standards or objectives which are inferior to those required by that health system, taking the latter duties into consideration would mean recognising the career development of staff who have provided certain services which are not compliant with those quality standards or those objectives.
39 According to that board, the legislation at issue in the main proceedings is consequently, in essence, justified by the absence of harmonisation, at EU level, of the rules on how professional experience acquired is taken into consideration and by the absence of criteria for comparing quality standards and the respective principles and objectives of health systems.
40 It must be recalled, in that regard, that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since that level may vary from one Member State to another, Member States must be allowed a measure of discretion in that area (judgment of 20 December 2017, Simma Federspiel, C‑419/16, EU:C:2017:997, paragraph 45 and the case-law cited).
41 It follows that the objective mentioned by the referring court in the present case, namely to guarantee the objectives and organisation of the national health service, may, as a public-health policy objective linked to the improvement of the quality of care in the health system concerned and to the attainment of a high level of health protection, be regarded as a public interest objective within the meaning of the case-law referred to in paragraph 35 of this judgment.
42 Whilst, subject to verification by the referring court, such a public interest objective may be accepted, it is also necessary, in order for the restriction on freedom of movement for workers which that national provision entails to be justified, for that restriction to be appropriate to ensure the attainment of the objective which it pursues and not to go beyond what is necessary to attain it.
43 In view of the case file before the Court and subject to verification by the referring court, it does not appear that the taking into consideration of the length of service of the healthcare professional concerned and the individual level reached by that healthcare professional in terms of knowledge, experience in care, teaching and research activities and the attainment of care and research goals in the organisation concerned can be regarded as being an inappropriate measure to achieve the objective of greater protection of health which it appears to pursue.
44 With regard to the assessment to be made of whether the legislation at issue in the main proceedings is strictly necessary, the referring court will have to take account of the fact that, first, the recognition of professional experience acquired by the worker concerned in the health system of another Member State must not be treated, in general, as being an obstacle to the attainment of such an objective.
45 Second, that court will have to take into consideration the circumstance that that professional experience could be recognised on the basis of a procedure which gives the individual concerned the chance to demonstrate the equivalence of professional experience which he or she has acquired in other Member States, just as, as is apparent from the case file before the Court, the national legislation at issue in the main proceedings allows such recognition for the purposes of obtaining the three-yearly length-of-service increments paid to temporary regulated staff.
46 In a situation which does not fall within the scope of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22) but which falls within the scope of Article 45 TFEU, which it is for the referring court to ascertain, the host Member State concerned must comply with its obligations with regard to the recognition of professional qualifications (judgment of 3 March 2022, Sosiaali- ja terveysalan lupa- ja valvontavirasto (Basic medical training), C‑634/20, EU:C:2022:149, paragraph 41).
47 Thus, the Court has held that the authorities of that Member State to which an application has been made by an EU national for authorisation to pursue a profession, access to which depends, under the applicable national legislation, on the possession of a diploma or professional qualification or on periods of practical experience, are required to take into consideration all the diplomas, certificates and other evidence of formal qualifications of the person concerned and his or her relevant experience, by comparing the specialised knowledge and abilities so certified, and that experience, with the knowledge and qualifications required by that national legislation (judgment of 3 March 2022, Sosiaali- ja terveysalan lupa- ja valvontavirasto (Basic medical training), C‑634/20, EU:C:2022:149, paragraph 38 and the case-law cited).
48 Thus, where the comparative examination of diplomas results in the finding that the knowledge and qualifications attested by the foreign diploma correspond to those required by the national provisions, the host Member State must recognise that diploma as satisfying the requirements laid down by its national provisions. If, on the other hand, the comparison reveals that the knowledge and qualifications attested by the foreign diploma and those required by the national provisions correspond only partially, that Member State is entitled to require the person concerned to show that he or she has acquired the knowledge and qualifications which are lacking (judgments of 6 October 2015, Brouillard, C‑298/14, EU:C:2015:652, paragraph 57, and of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija, C‑166/20, EU:C:2021:554, paragraph 39).
49 It follows that it is necessary to reject the line of argument advanced by the Regional Health Management Board for Castilla y León which is based on the absence, in the European Union, of a common system of organisation of the health services of Member States.
50 In the light of all the foregoing considerations, the answer to the questions referred is that Article 45 TFEU and Article 7 of Regulation No 492/2011 must be interpreted as precluding national legislation on the recognition of career development in the health service of a Member State which prevents the taking into consideration, as part of the length of service of a worker, of professional experience acquired by that worker in a public health service of another Member State, unless the restriction on freedom of movement for workers which that legislation entails has a public interest objective, makes it possible to ensure the attainment of that objective and does not go beyond what is necessary to attain it.
51 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.