Opinion of Advocate General Tesauro delivered on 14 September 1994

1 Original language: Italian.

2 Boletín Oficial del Estado, 31 January 1984, p. 2524.

3 OJ 1975 L 167, p. 1.

4 OJ 1975 L 167, p. 14.

5 OJ 1982 L 43, p. 21.

6 It must be borne in mind here that 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 (OJ 1993 L 165, p. 1) provided for those directives to be Consolidated into a single text.

7 I think it may be helpful to set out in full point 1 of the Annex concerned, according to which:Fulltime training of specialists ... shall be carried out in specific posts recognized 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.

8 Boletín Oficial del Estado of 15 January 1990, p. 126.

9 Emphasis added.

10 The relevant documents, as produced in the Court by the Commission, merely reveal that: (a) the Commission's proposal and the text of 27 November 1974 in the form produced by the endeavours of the Council's economic questions committee contained two recitals, one concerning the minimum length of specialist training and the second concerning other minimum standards; (o) only in the recital relating to the minimum length of training was it stated that the reference was solely to those specialties common to all the Member States or two or more Member Sutes; (c) the version of 17 December 1974, as revised by the lawyer-linguists, contained a second recital all but identical to that in the version subsequently adopted; (d) on 17 January 1975 that last version was sent by the members of COREPER to the Council, together with a note on the state of progress and on the remaining disagreements and reservations expressed by certain delegations, with a view to the continuation of the travaux and the subsequent adoption of the measure which took place on 16 June 1975.

11 See the fourteenth recital in the preamble to Directive 93/16/EEC, previously cited. A further point, although this is not a decisive argument, is that Council Directive 78/687/EEC of 25 July 1978 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of dental practitioners (OJ 1978 L 233, p. 10) which lays down, in Article 2(1), minimum criteria for training as a practitioner of specialized dentistry, also contains a second recital similar to the one under consideration.

12 A literal interpretation of Article 5 would, by contrast, have had to lead for instance to the inclusion of occupational medicine in the recognition directive in relation to Spain as well, since it is a specialty which is expressly mentioned in Article 5 and which exists and is regulated in that State as in other Member States. Case C-306/84 Commission v Belgium [1987] ECR 675, in which the Court was called upon to declare that by not complying with Article 5 of the coor- dination directive with respect to the minimum period of specialized training in tropical medicine, Belgium was in breach of the directive, is similarly instructive in that regard. While the Court found against Belgium because a period of one year rather than four, as required by the directive, was provided for, it is none the less true that Belgium requested, and was granted, a dispensation as regards tropical medicine from the recognition directive, which in turn authorized that State not to comply with Article 5 of the coordination directive even though tropical medicine exists and is recognized in Belgium.

13 As already pointed out in point 10, the provisions of that article apply to all those Member States which have laid down provisions by law, regulation and administrative action m this field and not only to those which mutually recognize the specialties concerned for the purposes of the recognition directive. Moreover, while Arude 7(2) of the recognition directive lists the specialties common to two or more Member Sutes and identifies those Sutes, Article 7(1) sutes that the qualifications and diplomas referred to are those which correspond for the purposes of the specialized training in question to the designations Usted in Article 7(2) in respect of those Member States which give such training.

14 This recital is worded as follows: Whereas the coordination referred to above was not intended to harmonize all the provisions of the Member Sutes on the training of specialists and it is nevertheless appropriate to proceed with the mutual recognition of diplomas, certificates and other evidence of formal qualifications as a specialist which are not common to all the Member Sute, without however excluding the possibility of subsequent harmonization in this field; whereas it was considered in this connection that recognition of diplomas, certificates and other evidence of formal qualificauons as a specialist must be restricted to those Member Sutes where such specialization is known. This plainly means that the diplomas and certificates existing in at least two Member Sutes are subject to mutual recognition and therefore, conversely, that the only diplomas or certificates remaining outside the ambit of the two directives are those awarded in one Member Sute alone.

15 The host Member State's obligation under Article 8(2) and (3) to take into account the training periods completed in the Member Sute of origin or the Member State from which the foreign national comes, provided that such periods correspond to those required in the host Sute, is, therefore, clearly to be interpreted as meaning that the said Sute must take such training periods into consideration, even where they relate to a different specialty, provided that the training required to obtain the relevant diploma or certificate corresponds in part to that required by the host Member Sute in order to obtain a diploma or certificate which is not awarded in the Member Sute of origin or the Member State from which the foreign national comes.

16 It will be sufficient in this context to consider that originally there were 47 specialties referred to in the directives and that now there are 50. Consequently, the potential creation of new specialties, and the possibility that specialties existing in one Member Sute alone may later be created and regulated in other Member Sutes as well, clearly reveal the advanuges of a common basis from which to surt for the purposes of including and recognizing the specialties concerned within the scope of those directives.

17 In this regard it is difficult to understand, even from the point of view of pure logic, how a difference in the length of the training period, for the purposes of obtaining the specialty concerned, is less important than the failure to provide remuneration, taking into consideraron the effects that each of those factors will ineviubly produce on the content of such training.

18 While it is may be assumed that the specialties common to some or all of the Member Sutes fell within the ambit of the two directives at the rime of their adoption (1975), it is equally clear that a problem arises with respect to those specialties which only subsequendy became common (to two or more Member Sutes), or were regulated and recognized in a given Member Sute, as a result of which they cannot be included in the ambit of those two directives except following an express amendment thereof, as for instance occurred in the case of Council Directive 89/594/EEC of 30 October 1989 (OJ 1989 L 341, p. 19).

19 Sec in this connection footnote 11.