Annalisa Carbonari and Others v Università degli studi di Bologna, Ministero della Sanità, Ministero dell'Università e della Ricerca Scientifica and Ministero del Tesoro.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Edward
• ECLI: ECLI:EU:C:1998:334
• Date: 02 July 1998
• Docket Number: C-131/97
• Procedure Type: Reference for a preliminary ruling

Important legal notice

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61997C0131

Opinion of Mr Advocate General Léger delivered on 2 July 1998. - Annalisa Carbonari and Others v Università degli studi di Bologna, Ministero della Sanità, Ministero dell'Università e della Ricerca Scientifica and Ministero del Tesoro. - Reference for a preliminary ruling: Pretura circondariale di Bologna - Italy. - Right of establishment - Freedom to provide services - Doctors - Medical specialties - Training periods - Remuneration - Direct effect. - Case C-131/97.

European Court reports 1999 Page I-01103

Opinion of the Advocate-General

1 The Pretura Circondariale di Bologna (Bologna District Magistrate's Court) has made a reference to the Court for a preliminary ruling on whether the provisions of Directives 75/362/EEC (1) and 75/363/EEC, (2) as amended by Directive 82/76/EEC, (3) under which doctors undergoing training to become specialists are entitled to `appropriate remuneration' during the period of their training, have direct effect.

The relevant provisions

The relevant Community provisions

2 Directive 75/362 (`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 freedom to provide services. (4) Directive 75/363 (`the "coordination" directive') coordinates certain provisions laid down by law, regulation or administrative action in respect of activities of doctors `... which then leaves the Member States freedom of organisation as regards teaching'. (5)

3 The `recognition' directive draws a distinction between diplomas, certificates and other evidence of formal qualifications in specialised medicine that are common to all the Member States (Article 5(2)) and those that are peculiar to two or more Member States (Article 7).

4 Recognition of the former is automatic if, in accordance with Article 4 of the `recognition' directive, their holders have undergone training that satisfies the minimum conditions laid down by the `coordination' directive. In the case of the latter, Article 6 states that recognition - provided, however, that the holders can rely on having undergone training satisfying the requirements laid down by the `coordination' directive - is automatic between these States.

5 The `coordination' directive introduces some harmonisation of conditions relating to training and access to the different 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 ...'. (6) However, these `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 specialties common to all the Member States or to two or more Member States'. (7)

6 These Directives were amended by Directive 82/76, (8) the purpose of which, as clearly stated in the third recital in the preamble thereto, was to define a new, stricter system for part-time training of medical specialists. (9) This Directive also made various technical amendments to the two 1975 Directives, rendered necessary as a result of changes in the domestic legislation of Member States and the experience gained in the first years of application. (10)

7 Article 1 of the `coordination' directive places Member States under an obligation to require persons wishing to take up and pursue a medical profession to hold a diploma, certificate or other evidence of formal qualifications in medicine referred to in Article 3 of the `recognition' directive guaranteeing that during his complete training period the person concerned has acquired the minimum knowledge set out in Article 1(1)(a) to (d) of the `coordination' directive.

8 Article 2(1), amended by Article 9 of Directive 82/76, states that:

`1. Member States shall ensure that the training leading to a diploma, certificate or other evidence of formal qualifications in specialised medicine, meets the following requirements at least:

(a) it shall entail the successful completion of six years' study within the framework of the training course referred to in Article 1;

(b) it shall comprise theoretical and practical instruction;

(c) it shall be a full-time course supervised by the competent authorities or bodies pursuant to point 1 of the Annex hereto; (11)

(d) it shall be 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;

(e) it shall involve the personal participation of the doctor training to be a specialist in the activity and in the responsibilities of the establishments concerned.'

9 Article 13 of Directive 82/76 added an Annex to the `coordination' directive, point 1 of which states:

`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.'

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

11 Articles 4 and 5 of the same directive set the minimum lengths of the specialised training courses leading to diplomas, certificates or other evidence of formal qualifications referred to in Articles 5 and 7 of the `recognition' directive, which are common to all the Member States or to two or more of them.

12 Lastly, Article 16 of Directive 82/76 states that Member States must take the necessary measures to comply with the directive by 31 December 1982.

The relevant national provisions

13 The `recognition' and `coordination' directives were implemented by the Italian Republic by Law No 217 of 22 May 1978.

14 Directive 82/76, however, was not fully transposed into national law by the Italian Republic until after the Court's judgment of 7 July 1987 in the Commission v Italy case, (12) by Legislative Decree No 257 of 8 August 1991 (hereinafter `DL No 257'). (13)

15 The relevant Articles of DL No 257 are as follows:

`Article 4 - Rights and obligations of trainee medical specialists

1. The full-time training of medical specialists shall involve participation in all the medical activities of the department where the training is...