Commission of the European Communities v Kingdom of Spain.

• Jurisdiction: European Union
• Celex Number: 61999CC0232
• ECLI: ECLI:EU:C:2001:504
• Court: Court of Justice (European Union)
• Date: 04 October 2001
• Procedure Type: Recurso por incumplimiento – fundado
• Docket Number: C-232/99

Important legal notice

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61999C0232

Opinion of Advocate General Stix-Hackl delivered on 4October2001. - Commission of the European Communities v Kingdom of Spain. - Failure by a Member State to fulfil its obligations - Directive 93/16/EEC - Transposition of Articles 8 and 18 - Access to additional training for migrant doctors who wish to practise specialised medicine in the host Member State on the basis of a diploma, certificate or other evidence of formal qualifications of specialist doctors which is not the subject of automatic unconditional recognition under that directive - Obligation for migrant doctors in Spain to sit the standard competition for admission to training in specialised medicine - Requirement for affiliation to a public social security body for the settlement of accounts relating to medical services with an insurance body. - Case C-232/99.

European Court reports 2002 Page I-04235

Opinion of the Advocate-General

I - Subject-matter

1. By this action the Commission is seeking a declaration that, by failing to transpose Article 8 of 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 (Directive 93/16) correctly into national law, and by failing to transpose Article 18 of Directive 93/16 into national law, the Kingdom of Spain has failed to fulfil its obligations under that directive.

2. The central issue in these proceedings is whether Article 8 of Directive 93/16 entitles a Member States (hereinafter the host Member State) to require candidates holding diplomas, certificates and other evidence of formal qualifications in specialised medicine (evidence of formal qualifications in specialised medicine) from other Member States (Member States of origin), who must undergo additional training in specialised medicine (additional training) in order to acquire evidence of formal qualifications in specialised medicine in the host Member State (migrant specialist doctors), to take part in a selection process the principal element of which is a test in which the majority of the questions deal with basic medical training.

3. In addition, there is the issue whether Article 18 of Directive 93/16 requires that, in general, national social security schemes must also bear the cost of services performed by doctors who are established in other Member States and are not members of those schemes.

II - Legal framework

A - Directive 93/16/EEC

4. The 2nd, 3rd, 12th, 15th and 22nd recitals are worded as follows:

... pursuant to the Treaty, all discriminatory treatment based on nationality with regard to establishment and provision of services is prohibited as from the end of the transitional period; whereas the principle of such treatment based on nationality applies in particular to the grant of any authorisation required to practise as a doctor and also to the registration with, or membership of, professional organisations or bodies;

...

... it nevertheless seems desirable that certain provisions be introduced to facilitate the effective exercise of the right of establishment and freedom to provide services in respect of the activities of doctors;

...

... in the case of the provision of services, the requirement of registration with, or membership of, professional organisations or bodies, since it is related to the fixed and permanent nature of the activity pursued in the host country, would undoubtedly constitute an obstacle to the person wishing to provide the service, by reason of the temporary nature of his activity; whereas this requirement should therefore be abolished; whereas, however, in this event, control over professional discipline, which is the responsibility of these professional organisations or bodies, should be guaranteed; whereas, to this end, it should be guaranteed; whereas, to this end, it should be provided, subject to the application of Article 62 of the Treaty, that the person concerned may be required to submit to the competent authority of the host Member State particulars relating to the provision of services;

...

... the coordination of the conditions for the pursuit of these activities, as envisaged by this Directive, does not exclude any subsequent coordination;

...

... this Directive does not affect the power of the Member States to organise their national [social] security schemes and to determine what activities are to be carried out under those schemes;.

5. Article 2 (recognition of qualifications in medicine) provides as follows:

Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 23 and which are listed in Article 3, by giving such qualifications, as far as the right to take up and pursue the activities of a doctor is concerned, the same effect in its territory as those which the Member State itself awards.

6. Article 4 and Article 6 (recognition of qualifications in specialised medicine) provide as follows:

Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications in specialised medicine awarded to nationals of Member States by the other Member States in accordance with Articles 24, 25, 26, and 29 and which are listed in Article 5, by giving such qualifications the same effect in its territory as those which the Member State itself awards.

Each Member State with provisions on this matter laid down by law, regulation or administrative action shall recognise the diplomas, certificates and other evidence of formal qualifications in specialised medicine awarded to nationals of Member States by the other Member States in accordance with Articles 24, 25, 27 and 29 and which are listed in Article 7, by giving such qualifications the same effect in its territory as those which the Member State itself awards.

7. Article 8 provides:

1. Nationals of Member States wishing to acquire one of the diplomas, certificates or other evidence of formal qualifications of specialist doctors not referred to in Articles 4 and 6, or which, although referred to in Article 6, are not awarded in the Member State of origin or the Member State from which the foreign national comes, may be required by a host Member State to fulfil the conditions of training laid down in respect of the speciality by its own law, regulation or administrative action.

2. The host Member State shall, however, take into account, in whole or in part, the training periods completed by the nationals referred to in paragraph 1 and attested by the award of a diploma, certificate or other evidence of formal training by the competent authorities of the Member State of origin or the Member State from which the foreign national comes provided such training periods correspond to those required in the host Member State for the specialised training in question.

3. The competent authorities or bodies of the host Member State, having verified the content and duration of the specialist training of the person concerned on the basis of the diplomas, certificates and other evidence of formal qualifications submitted, shall inform him of the period of additional training required and of the fields to be covered by it.

8. Article 18 provides:

Where registration with a public social security body is required in a host Member State for the settlement with insurance bodies of accounts relating to services rendered to persons insured under social security schemes, that Member State shall exempt nationals of Member States established in another Member State from this requirement, in cases of provision of services entailing travel on the part of the person concerned.

However, the persons concerned shall supply information to this body in advance, or, in urgent cases, subsequently, concerning the services provided.

B - National law

9. Article 12a of Royal Decree 1691/1989 governs the requirements for awarding Spanish qualifications in specialised medicine to persons who have undertaken periods of specialised medical training in other Member States.

10. Annex II to Article 12a of the Royal Decree lists the qualifications in specialised medicine which are recognised in Spain in accordance with Articles 4 and 6 of Directive 93/16. In respect of any qualifications in specialised medicine which are not listed in the annex, Article 12a(2) of the Royal Decree provides that periods of specialised medical training undertaken in the Member State of origin will be assessed according to clearly-defined criteria, by reference to their correlation with the relevant Spanish qualifications in specialised medicine, and, where appropriate, the migrant specialist doctor will be informed of the need to undertake additional training and also of the content and duration of that training.

11. Article 12a(3) of the Royal Decree provides that additional training must take place at accredited training centres for the specialty in question. Migrant specialist doctors must apply for a post at those centres and must go through a selection procedure under the same conditions as all the other candidates for specialist training posts.

12. The selection procedure is governed by Royal Decree 127/1984. Essentially, it consists of an evaluation of the results obtained in the candidate's basic medical training and the sitting of a multiple-choice test. The selection procedure bears the name used in Spain to denote a Resident Medical Intern, that is MIR (hereinafter MIR).

13. Under Article 12a(4) of the Royal Decree, migrant specialist doctors who passed a national selection test in their Member State of origin for admission to periods of specialised medical training undertaken there will not be required to take part in the MIR. In such cases, the period of additional training will take place at the accredited...