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Opinion of Advocate General Wahl delivered on 13 September 2017.
  • ECLI identifier: ECLI:EU:C:2017:677
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  • Date of document: 13/09/2017
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OPINION OF ADVOCATE GENERAL

WAHL

delivered on 13 September 2017(1)

Case C419/16

Sabine Simma Federspiel

v

Provincia autonoma di Bolzano

Equitalia Nord SpA

(Request for a preliminary ruling from the Tribunale di Bolzano / Landesgericht Bozen (District Court of Bolzano, Italy))

(Freedom of establishment — Freedom to provide services — Doctors — Directive 75/363/EEC — Mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine — Acquisition of the title of medical specialist — Remuneration during the period of training — Obligation to work in the public health service for a period of no less than 5 years within 10 years of obtaining the qualification — Articles 45 and 49 TFEU — Concept of restriction — Justification — Proportionality)






I.      Introduction

1.        The present case stems from a dispute between Sabine Simma Federspiel (‘Ms Federspiel’) and the Provincia Autonoma di Bolzano (Autonomous Province of Bolzano, Italy, ‘the Province’) concerning the repayment of an amount of EUR 68 515.24 and statutory interest.

2.        Ms Federspiel received a bursary from the Province for full-time medical specialisation training at the University of Innsbruck in Austria. In order to benefit from the bursary allowing her to become a specialist in neurology and psychiatry, Ms Federspiel signed a declaration undertaking to practise in the public health service of the Province for a period of no less than five years after completing her specialisation training in Austria. She also accepted that, in the event of a failure to honour that undertaking, the Province could reclaim up to 70% of the bursary paid.

3.        In that context, the question that arises is whether a condition provided under national law, which subjects the grant of a bursary for medical specialisation training to five years’ service in the public health service in the Province and, failing that, to an obligation to repay a part of the bursary received, is precluded by EU law. More specifically, the referring court asks the Court whether that condition is compatible, on the one hand, with Directive 75/363/EEC, (2) and Article 45 TFEU, on the other.

4.        In that regard, this case offers the Court an opportunity to define the limits of the obligations arising from that directive and revisit the question of what constitutes a restriction on the fundamental freedoms enshrined in the Treaties.

II.    Legal framework

A.      EU law

5.        Directive 75/363 coordinates the provisions laid down by law, regulation or administrative action in respect of activities of doctors. It sets out the standards that Member States are to observe in organising medical training in their respective territories.

6.        The first recital of Directive 75/363 explains that to achieve the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, as laid down in Directive 75/362, (3) the comparable nature of training courses in the Member States means that coordination in this field can be limited to the requirement to observe minimum standards, which then leaves the Member States freedom of organisation as regards teaching.

7.        The second recital clarifies that, to ensure mutual recognition 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 Union, some coordination of the requirements for training in specialised medicine is considered necessary. To that effect, the same recital explains that certain minimum criteria should be laid down for this purpose 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. The recital further specifies that those criteria only concern the specialities common to all the Member States or to two or more Member States.

8.        Article 1 of Directive 75/363 lays down the requirements that Member States are to place on persons wishing to take up and pursue a medical profession.

9.        Article 2 of the directive sets out the minimum requirements that the training in specialised medicine must meet. More specifically, paragraph 1 thereof provides:

‘Member States shall ensure that the training leading to a diploma, certificate or other evidence of formal qualifications in speciali[s]ed 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;

(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.’

10.      The Annex thereto, which was added by Directive 82/76 to Directive 75/363, concerns the characteristics of the full-time and part-time training of specialists. It 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.

...’

11.      Directive 75/363 has been replaced by Directive 93/16/EEC (4) which groups together a number of directives in the field of free movement of medical professionals. That legislative change did not bring about any substantive changes regarding the relevant provisions for the present purposes.

B.      National law

12.      Article 1 of Legge provinciale 3 gennaio 1986 (Provincial Law No 1/1986, ‘the contested measure’) (5) provides:

‘(1)      It being impossible to acquire specialist medical qualifications in the [Province], the competent provincial minister is authorised, following a prior decision by the Provincial Government, to sign appropriate agreements to create additional posts for the training of medical specialists with Italian universities and with the competent Austrian public authorities, in accordance with the laws of that State in the field in question, subject to compliance with national and provincial legislation.

(2)      The agreement signed with the Austrian public authorities pursuant to the preceding paragraph may provide for the Province to pay those authorities an amount not exceeding the maximum for the bursary laid down in Article 3 below if they provide for the payment of a corresponding remuneration to the trainee specialist.’

13.      Article 2(1) of the contested measure states:

‘The requirement for medical specialists to meet the needs of the provincial health service shall be determined, for each specialisation, by the Provincial Government in accordance with the objectives of the provincial health plan after hearing the opinion of the Ordine dei medici (College of Doctors), and the Consiglio provinciale di sanità (Provincial Health Council).’

14.      Article 3 of the contested measure reads as follows:

‘(1)      The Provincial Government shall be authorised to publish notices of competitions for the award of bursaries for specialist training to doctors resident in the [Province] and certified to practise as a doctor for the purpose of attaining qualifications in the specialities in which there is a shortage, as listed in Article 2. ...

(2)      The bursaries referred to in the preceding paragraph shall be awarded on the basis of a list ranked according to qualifications drawn up in accordance with criteria to be laid down by decision of the Provincial Government ...

(3)      The amount of the specialist bursary shall be stated in the notice of competition and may not exceed the starting salary of trainee assistants in the health service.

(4)      The winners of specialist bursaries shall undergo the period of specialist training at the hospitals named in the notice of competition.

…’

15.      Article 7 of the contested measure provides as follows:

‘(1)      Recipients referred to in Article 3 or Article 6(1) and (2) of this Law shall undertake to practise in the public health service of the [Province] for a period to be determined by regulation of the Provincial Government. That period may not be less than five years and shall be completed over a time span to be laid down in the same regulation.

(2)      In the event of complete or partial failure to honour the undertaking referred to in the preceding paragraph, part of the specialist bursary or financial contribution shall be repaid, together with statutory interest. The part to be repaid shall be determined by decision of the Provincial Government on the basis of a regulation and shall not exceed 70% of the bursary or contribution.’

16.      The regulation implementing Article 7 of the contested measure, namely, Decree of the President of the Provincial Government No 6/1988, (6) provides as follows:

‘(1)      Recipients of the specialist bursaries or contributions referred to in Articles 3 and 6(1) and (2) of Provincial Law No 1 of 3 January 1986 shall undertake to practise for 5 years in the public health service of the [Province], on a contractual basis where appropriate, within 10 years of the date of qualifying for the specialisation or completing the period of training.

(2)      The disbursement of bursaries and contributions shall be conditional on the person concerned producing a declaration on the appropriate form with an authenticated signature affirming the undertaking to comply with the condition laid down in paragraph 1.

(3)      Recipients shall be required:

(a)      to repay up to 70% of the total amount of the bursary or contribution in the event of total failure to honour the undertaking referred to in paragraph 1;

(b)      to repay up to 14% of the total amount of the bursary or contribution for each year or part of a year in excess of six months in which the recipient failed to practise, up to a maximum of five years, in the event of partial failure to honour the undertaking.

(4)      Total or partial failure to honour the undertaking referred to in paragraph 1 shall be determined by a decision of the Provincial Government, upon a proposal from the competent provincial minister, which shall determine the amount of the bursary or contribution to be repaid, within the limits set out in paragraph 3, taking into account any justification adduced by the person concerned.

(5)      Failure to honour the undertaking referred to in paragraph 1 shall be deemed not to have occurred if the person concerned proves that he or she applied for a post in the public health service of the [Province] and, having taken part in the corresponding competitive examinations, was found suitable or was placed on the ranking lists for contracts but was not called upon to commence work with theservice.

(6)      The amounts owed on the basis of the decision of the Provincial Government referred to in paragraph 4 shall be recovered by means of a collection order issued by the President of the Provincial Government pursuant to Royal Decree No 639 of 14 April 1910.’

III. Facts, procedure and the questions referred

17.      Ms Federspiel is an Italian citizen who received a bursary from the Province for completing specialisation training at the University of Innsbruck (Austria) between 1992 and 2000 in order to qualify as a medical specialist in neurology and psychiatry.

18.      Since no university faculty of medicine exists in the Province providing specialisation training, the Province has, on the basis of the contested measure, signed agreements with, inter alia, Italian universities and the Austrian public authorities with the aim of establishing additional posts for specialist medical training in those countries. Those posts are remunerated, through bursaries, by the Province. In return for receiving a bursary, the Province requires the doctor concerned to practise (or, as the case may be, to take the necessary steps to practise), after having qualified as a specialist, in the public health service of the Province for a certain period of time.

19.      On 21 December 1992, Ms Federspiel signed a declaration undertaking to practise for 5 years in the public health service of the Province within 10 years of completing her qualification as a specialist. According to the terms of the declaration, if she failed to honour that undertaking, she would have to repay up to 70% of the bursary. If she failed to honour it in part, she would have to repay up to 14% of the bursary for each year or part of a year in excess of six months of work not undertaken.

20.      After obtaining her qualification at the University of Innsbruck in 2000, Ms Federspiel took up residence in Bregenz (Austria) where she has practised since.

21.      On 20 February 2013, the administration of the Province requested Ms Federspiel to provide a certificate attesting that she had practised in the Province in accordance with the declaration signed in 1992. In the alternative, she was asked to provide evidence that she had applied for a post in the public health service of the Province and had been found suitable, or had been placed on the ranking lists for contracts, but had not been called upon to commence her work with the service.

22.      In reply to that request, Ms Federspiel informed the Province that she had not practised medicine in the public health service of the Province after she completed her specialisation training.

23.      Pursuant to Decree No 259/23.5 of 5 August 2013 of the Assessore (Minister) of the Provincial Government (‘the Decree’), the administration of the Province demanded repayment of 70% of the remuneration received, that is to say, a principal amount of EUR 68 515.24, plus interest of EUR 51 418.63. In other words, she was requested to repay a total of EUR 119 933.87.

24.      Before the referring court, Ms Federspiel seeks annulment of that Decree on the grounds that that decree is not compatible with EU law.

25.      Entertaining doubts in that regard, the referring court decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)      Are Article 2(1)(c) of [Directive 75/363], as amended by [Directive 82/76], and the annex referred to therein to be interpreted as precluding a provision of national law, such as that applicable in the main proceedings, which makes disbursement of the remuneration for doctors studying to become specialists subject to presentation of a declaration by the recipient doctor undertaking to work for at least 5 years in the public health service of the [Province] within 10 years of completing training as a specialist and which, in the event of a total failure to honour that undertaking, expressly permits the [Province], as the body funding the remuneration, to reclaim up to 70% of the allowance paid together with statutory interest calculated from the moment at which the administration paid each individual instalment?

(2)      If the first question is answered in the negative: does the principle of freedom of movement for workers under Article 45 TFEU preclude a provision of national law, such as that applicable in the main proceedings, which makes disbursement of the remuneration for doctors studying to become specialists subject to presentation of a declaration by the recipient doctor undertaking to work for at least 5 years in the public health service of the [Province] within 10 years of completing training as a specialist and which, in the event of a total failure to honour that undertaking, expressly permits the [Province], as the body funding the remuneration, to reclaim up to 70% of the allowance paid together with statutory interest calculated from the moment at which the administration paid each individual instalment?’

26.      Written observations have been submitted by Ms Federspiel, the Province and the Commission, all of whom presented oral argument at the hearing held on 15 June 2017.

IV.    Analysis

A.      Context

27.      There is no university faculty of medicine in the Province that can provide the specialisation training necessary to ensure adequate medical staffing and expertise in the bilingual (Italian and German) Province. For that reason, the Province finances specialisation training in other provinces of Italy, in Germany and Austria. Through financing provided by the Province, additional posts have been created at, inter alia, the University of Innsbruck for doctors having obtained a bursary from the Province for completing specialisation training at that university.

28.      The bursaries provided by the Province are, however, subject to a condition. The recipient doctor is required to work (or, as the case may be, to have taken the necessary steps to work) for at least 5 years in the public health service of the Province within 10 years of completing the specialisation training offered by the Province. In addition, if the necessary steps to work in the Province have not been taken, the Province, as the body funding the remuneration, can claim up to 70% of the amount of the bursary paid together with statutory interest calculated from the moment at which the administration paid each individual instalment (‘the condition at issue’).

29.      That condition — and its compatibility with secondary legislation (first question) and primary law (second question) — lies at the heart of this case.

30.      As I shall explain in the following, the condition at issue is compatible with EU law.

B.      The first question referred

31.      By its first question, the national court asks whether Directive 75/363 precludes a provision of national law which subjects the grant of a bursary for medical specialisation training to the condition at issue.

32.      It is my view that Directive 75/363 cannot assist Ms Federspiel. To explain why, it is necessary to call to mind the rationale underlying Directive 75/363 and the system set up by that directive.

1.      The rationale of Directive 75/363: mutual recognition of qualifications to ensure free movement of medical professionals

33.      Directive 75/363 — and its successor Directive 93/16 — are designed to ensure the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine throughout the European Union. To achieve that objective, it provides for coordination and minimum harmonisation of Member State legislation in the field. More specifically, it aims to harmonise conditions relating to training and access to the different medical specialties with a view to mutual recognition of formal qualifications in specialised medicine.

34.      Put simply, the directive lays down certain rules that Member States are to observe in organising their respective medical training programmes.

35.      Regarding specialised medicine in the fields covered by the directive, (7) Article 2 thereof lays down criteria regarding 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 must be subject.

36.      Those criteria are intended to ensure that, without completely harmonised training programmes, qualifications can be mutually recognised and EU nationals put on an equal footing within the European Union regarding professional qualifications in the field of medicine. (8) The directive is thus designed to facilitate the free movement of EU nationals belonging to the medical profession. Put differently, it constitutes a vehicle for enhancing freedom of establishment and the freedom to provide services in the field of medicine.

37.      To that particular end, the Annex to the directive describes the characteristics of full-time specialisation training. It is in that context that a general obligation to provide ‘appropriate remuneration’ is laid down. That obligation constitutes a logical corollary to the objective that training is a full-time occupation. Indeed, in accordance with the Annex, the trainee specialist is to devote to practical and theoretical training all his professional activity throughout the duration of the standard working week and throughout the year.

38.      Clearly, that would be impossible without appropriate remuneration.

39.      As the Court has held, the obligation laid down in Directive 75/363 to provide appropriate remuneration for specialist training is necessary in order to avoid a situation where unpaid trainee specialists would have to take on additional work to pay for their traineeship, thereby compromising their training. (9) In that sense, appropriate remuneration constitutes a necessary prerequisite for the mutual recognition of professional qualifications in Member States. (10)

40.      On the other hand, the Court has also recognised that Directive 75/363 does not define the institution which is to pay the remuneration, what constitutes ‘appropriate’ remuneration, or the method by which that remuneration is to be fixed. (11) Given the silence of the directive on those issues, Member States enjoy broad discretion in that regard.

41.      More specifically, the Court has held that Directive 75/363 lays down a clear and unconditional obligation for the Member States to remunerate medical specialist training. Yet it leaves the conditions under which that remuneration is to be provided to the discretion of the Member State. (12)

42.      That brings me to the case under consideration.

2.      he case under consideration

43.      The doubts entertained by the referring court regarding the compatibility of the condition at issue with Directive 75/363 arise from the fact that the bursary offered by the Province for full-time training at the University of Innsbruck in order to become a medical specialist is subject to a condition: if the recipient of the bursary does not honour the undertaking to practise at least 5 years in the public health service of the Province within 10 years of completing training as a specialist, the Province is entitled to reclaim 70% of the amount of the bursary. In that sense, it could be argued that that 70% merely constitutes a loan to be reimbursed after the doctor has completed the training programme. Seen from that perspective, it could be argued that the bursary provided does not meet the requirement of ‘appropriate’ remuneration for full-time specialisation training laid down in Directive 75/363.

44.      However, that conclusion is based on a fallacy.

45.      To begin with, Ms Federspiel completed her medical specialisation training at the University of Innsbruck in Austria. She was able to do so on the basis of an agreement between the Province and the Land Tirol. In accordance with that agreement, additional posts have been created at the University of Innsbruck. Those posts are reserved for doctors who have obtained a bursary from the Province for completing specialisation training at the university.

46.      It can be seen from the order for reference that the Province paid the specialisation bursary to the university clinic of Innsbruck. In practice, therefore, the payments were made to Ms Federspiel by the university clinic, which was then reimbursed by the Province. Further, it was confirmed at the hearing that the costs relating to the training were shared between the University of Innsbruck and the Province: at the hearing, Ms Federspiel acknowledged that the Province contributed to the costs of the training by approximately 39% of the total yearly amount. The rest was borne by the University of Innsbruck.

47.      As already stated above, Directive 75/363 sets out rules that Member States are to observe in organising medical training in their respective territories. The rationale of those rules is to ensure that the formal qualifications thus obtained can be recognised in other Member States. For obvious reasons, only the Member State in which the training takes place can take the necessary steps to fulfil the obligations arising from the directive, given that Member States have no authority over the organisation of training in other Member States.

48.      I find no support in the directive for the proposition that it would also regulate agreements that may exist between Member States (or between Member States and third countries, as was the case between Italy and Austria until 1995) regarding access to medical specialisation training in another State and the financial arrangements underlying such cooperation.

49.      To preserve the internal consistency of the system of coordination set up by Directive 75/363, the obligation laid down in the Annex to the directive to ensure that trainee specialists are appropriately remunerated during the training programme must fall on the Member State in which the training takes place.

50.      In the present case, that Member State is — after the accession of Austria to the then European Community in 1995 — Austria.

51.      As the Court has observed, the remuneration required under the directive is granted in return for, and in recognition of, the work carried out. It is intended for trainee medical specialists who participate in all the medical activities of the department where the training is carried out. (13) That is to ensure, as already mentioned, that the trainee specialist can devote all his time to the practical and theoretical training without having to perform additional work.

52.      That, in turn, is a prerequisite for comparability and mutual recognition.

53.      There is nothing in the file to suggest that that would not be so here. On the contrary: all parties having presented observations, including Ms Federspiel, concur that the remuneration she received for completing her specialist training in Austria was sufficient for that purpose.

54.      Even if Ms Federspiel had claimed that the remuneration she received (whether from the Province or the University of Innsbruck, or both) during the training programme was not appropriate within the meaning of Directive 75/363, the fact remains that the Member State responsible, under the directive, for ensuring that the trainee specialist receives appropriate remuneration, is the Member State in which the specialisation takes place.

55.      In other words, the directive cannot have an influence on the validity of the condition at issue. (14)

56.      The opposite result would artificially extend the scope of Directive 75/363 beyond what was intended by the legislature. It is important to note that, as the preamble to Directive 75/363 makes clear, (15) that directive was not designed to harmonise medical training beyond what is necessary for mutual recognition of diplomas and certificates, nor to limit the discretion of the Member States to determine the conditions governing remuneration for full-time training. Clearly, Austria has made full use of that possibility through the funding agreement concluded with the Province.

57.      Moreover, at the risk of stating the obvious, there can, in no circumstances, be joint responsibility between Member States for fulfilment of the obligations arising from the directive, as was suggested by the Commission at the hearing. That is so regardless of the particularities of the arrangement aimed to ensure that the trainee specialist receives appropriate remuneration. Needless to say, accepting that a Member State could be held responsible for failing to ensure that another Member State fulfil the obligations arising from a directive would have far-reaching consequences on a number of foundational principles of EU law, including, but not limited to, direct effect and State liability.

58.      I therefore consider that the first question referred should be answered to the effect that Directive 75/363 does not, in the circumstances of the case pending before the referring court, preclude a provision of national law which makes disbursement of the remuneration for doctors studying to become specialists subject to an obligation to work for at least 5 years in the public health service of the Province within 10 years of completing training as a specialist.

59.      I shall now turn to the second question, which addresses the compatibility of the condition at issue from the viewpoint of primary EU law.

C.      The second question referred

60.      By its second question, the referring court asks, in essence, whether the condition at issue is compatible with the FEU Treaty. In that regard, the referring court specifically refers to the principle of free movement of workers laid down in Article 45 TFEU.

61.      As a preliminary point, it is clear from the order for reference that Ms Federspiel resides and practises in Bregenz (Austria). It is not clear, however, whether she practises as an employee or as a self-employed doctor. However, as the Commission has rightly pointed out, that information is not of decisive importance. Indeed, the review of national measures under Articles 45 and 49 TFEU (freedom of establishment) remains the same.

62.      For that purpose, it must, as a preliminary point, be determined whether the condition at issue constitutes a restriction on free movement. If so, it must be decided whether it can be justified and whether it is proportionate to the aim pursued.

1.      Does the condition at issue constitute a restriction?

63.      Like the referring court, the parties that have submitted observations take it as a starting point that the condition at issue constitutes a restriction on free movement. They disagree, however, on whether that restriction is justified.

64.      Certainly, the condition at issue (an obligation to practise full time as a specialist in the public health service of the Province for at least 5 years during the 10 years following the qualification as a specialist or, in the alternative, to repay up to 70% of the amount received with statutory interest), seems, at first sight, a clear-cut restriction on the right to free movement of the doctor concerned.

65.      Indeed, according to the Court’s broad, all-encompassing definition, provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement constitute an obstacle to that freedom, even if they are applied neutrally without regard to nationality.The Court has also added that Article 45 TFEU limits the application of national rules which impede the freedom of movement of nationals of that State wishing to engage in gainful employment in another. (16)

66.      The application of that test here seems, admittedly, a straightforward task. Even though not formally preventing the doctor from doing so, the condition at issue makes the prospect of practising in another Member State less attractive during the period of 10 years that follow the completion of the specialisation. Indeed, the condition at issue is designed to ensure that recipients of bursaries honour the undertaking to practise in the Province for at least five years after the completion of the specialisation.

67.      Nonetheless, I would at the outset wish to express my doubts as to whether the condition at issue ought to be construed as a restriction on free movement.

68.      Like the statements of the Court, which should always be read in context, the condition at issue should not be viewed in isolation. It ought to be examined in the broader context of the contested measure. Viewed from that angle, the condition at issue forms part of a broader measure and is, as a consequence, intrinsically linked to the creation of additional posts for medical specialisation training outside the Province. Those posts, which would not have been available without financing from the Province, are offered to recipients of bursaries under the condition at issue. Thus, by offering doctors the possibility of qualifying as medical specialists (in another Member State), the contested measure constitutes a prerequisite for, rather than a restriction on, free movement of medical professionals as specialists. (17) In that context, the condition at issue simply constitutes (future and uncertain (18)) consideration for the possibility offered by the Province, keeping in mind that the Province cannot benefit from the work of the trainee specialist during the training programme.

69.      Although analytically and theoretically significant, the question whether the condition at issue constitutes a restriction on free movement is not, strictly speaking, decisive for the resolution of the present case. That is evidenced by the fact that neither the referring court nor the parties having presented observations have, as mentioned above, raised the issue. Bearing that in mind, this case does not lend itself to a more theoretical discussion on the normative foundations of the concept of restriction and, more specifically, on the most appropriate approach to identifying restrictions in different areas of the law on freedom of movement. (19)

70.      That having been clarified, even assuming that the condition at issue constitutes a restriction on free movement, that does not automatically mean that it is precluded under EU rules on free movement. According to the well-known formula, restrictive measures applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective. (20)

71.      There being no indication in the file that the condition at issue is applied in a discriminatory manner, I shall directly consider the possible justification and proportionality of the condition at issue.

2.      Justification

72.      The Province explains that the condition at issue protects and promotes public health. More specifically, it is designed to ensure that the local population can enjoy high-quality, stable specialist medical care, available to all. Simultaneously, the condition at issue is designed to avoid a significant risk for the financial stability of the social security system. In addition, the Province claims that the condition at issue is necessary to ensure that specialist care is available in the bilingual province in both official languages.

73.      In the field of public health and the provision of health services, Member States enjoy broad discretion. As a matter of principle, therefore, and to preserve a degree of regulatory autonomy, Member States may limit free movement on grounds of public health. (21)

74.      For example, the Court has already held that the objective of maintaining a balanced medical and hospital service open to all may fall within the derogations on grounds of public health, in so far as it contributes to the attainment of a high level of public health protection. (22) The Court has also recognised that in order to achieve a high level of public health protection, the Member State is allowed to plan the organisation of its healthcare. That policy has to pursue a twofold goal. On the one hand the planning has to ensure ‘sufficient and permanent access to a balanced range of high-quality treatment in the Member State concerned’. On the other, the Member States have to ‘control costs and avoid, so far as possible, any waste of financial, technical and human resources’. (23)

75.      In the present case, the Province argues that the condition at issue constitutes the most appropriate measure to ensure that specialised healthcare is available in the Province in both German and Italian and that it does not go beyond what is necessary to attain that objective.

76.      The question that arises, therefore, is whether that claim holds true.

3.      Proportionality

77.      Although it is, ultimately, for the referring court to review the proportionality of the condition at issue, I shall make the following remarks regarding the elements that that court ought to take into account in its assessment.

78.      In my view, the condition at issue strikes a fair balance between the prejudice to the rights to free movement that follows from the contested measure and the collective necessity of maintaining a balanced and well-functioning healthcare system.

79.      In that regard, a preliminary point I would make is that the review of proportionality (understood as encompassing the assessment of appropriateness and proportionality sensu stricto) must be based on a global assessment of the circumstances in which the restrictive legislation, such as that at issue in the main proceedings, was adopted and implemented.

80.      The Court has repeatedly held that, in the field of public health, Member States must be allowed discretion. That is, in essence, because it is for the Member State to determine the level of protection which it wishes to afford to public health and the way in which that level is to be achieved. (24)

81.      Bearing that in mind, the following points should be observed regarding the assessment of the different aspects of proportionality.

82.      First, it seems to me that the measure is appropriate for attaining the objective of the protection and promotion of public health.

83.      On the one hand, the Province has financed the creation of supplementary posts for medical specialisation training at the University of Innsbruck. Those posts are reserved for doctors having received a bursary from the Province. On the other hand, the condition at issue undoubtedly encourages medical specialists having benefited from such a bursary to work there. Seen in that light, it seems clear to me that the condition at issue, as a part of the contested measure, contributes to ensuring that a sufficient number of medical specialists is available in the Province.

84.      Second, regarding the necessity and reasonableness of the contested measure, I agree with the Commission and the Province.

85.      An obligation that is limited to 5 years’ remunerated work in the Province within 10 years of completion of the specialisation training appears reasonable.

86.      Indeed, it should be borne in mind that, although the Province ensures that the doctors concerned receive remuneration during the specialisation training, the Province cannot benefit from the work of the trainee specialists during the training programme.

87.      In addition, a point that should not be overlooked is that that obligation is limited in time in two different respects. On the one side, the doctor is required to work in the Province for a minimum of five years. On the other side, the obligation targets the first 10 years after the completion of the training programme and therefore predominantly affects doctors who are at the beginning of their careers.

88.      The obligation to work in the Province is tempered further by the fact that a position must be available in the Province, and it must have been offered to the doctor, at the relevant moment in time. That seems to adequately ensure that the condition at issue is relied upon only where need of medical specialists arises: it can be understood from the file and the explanations provided by the Province at the hearing that the Province calls upon doctors to practise there, on the basis of the condition at issue, only in so far as a real need is observed in a particular field of specialised medicine.

89.      Therefore, the Province has established, on the basis of the contested measure, a reserve of doctors who can be called upon to practise in case of need. If no positions are open, the doctor is free to pursue his or her career without restrictions.

90.      Third, with regard to the existence of alternative, less intrusive measures, it is certainly true that qualified personnel could also be induced to practise in the Province by financial means. However, it is not inconceivable that such a measure might have a significant impact on the public purse. In that regard, suffice it to point out that the Court has not been oblivious to arguments pertaining to the need to control costs in the provision of public health services. (25)

91.      In that context, it should not be forgotten that a particular linguistic regime applies in the Province. The need to ensure that high-quality healthcare is available in both languages arguably impedes the recruitment of qualified medical specialists. Bearing that in mind, it is difficult to envisage alternatives to the contested measure that could equally ensure that the Province can recruit a sufficient number of medical specialists able to practise in German and Italian.

92.      Lastly, by way of conclusion, I observe that in order to attain the objective of the contested measure, namely to ensure that specialised public healthcare is available in the Province in both official languages, it stands to reason that the creation of additional posts for specialisation training in Austria for recipients of bursaries from the Province is accompanied by a mechanism that ensures that the terms of the agreement are honoured. Otherwise, it would be nonsensical for the Province to ‘acquire’ posts for specialisation training at the University of Innsbruck.

93.      In that regard, the doubts regarding the compatibility of the condition at issue with EU law expressed by the referring court seem, at least in part, to stem from the fact that the total amount to be reimbursed by Ms Federspiel exceeds the amount of the bursary received for the training. In case of a failure to honour the undertaking to work in the Province, the recipient of the bursary is required to pay back not only 70% of the amount received, but also statutory interest that runs from the date of payment of each instalment. Therefore, as is the case of Ms Federspiel, the doctor concerned can be required to repay a sum that may be nominally significantly higher than the amount originally paid.

94.      In that regard, suffice it to note that in case of failure to honour the undertaking to work in the Province, the doctor is merely required to repay 70% of the bursary. Seen in that light, the doctor in fact receives 30% of the bursary for no consideration at all. In addition, the doctor obtains a specialisation in medicine that, it is safe to assume, will facilitate the exercise of free movement. On the other hand, I must stress that there is no indication that the interest charged would be unreasonable. The requirement to pay (statutory) interest is simply due for late payment and, as such, a logical consequence of failure to fulfil the (contractual) obligation to undertake work in the Province or, in the alternative, to repay the bursary in good time.

95.      Accordingly, the second question referred should be answered to the effect that Articles 45 and 49 TFEU do not preclude a provision of national law such as that applicable in the main proceedings, which makes disbursement of the remuneration for doctors studying to become specialists subject to an obligation to work for at least 5 years in the public health service of the Province within 10 years of completing training as a specialist and which, in the event of a total failure to honour that undertaking, expressly permits the Province, as the body funding the remuneration, to reclaim up to 70% of the allowance paid together with statutory interest.

V.      Conclusion

96.      In the light of the arguments presented, I propose that the Court answer the questions referred by the Tribunale di Bolzano / Landesgericht Bozen (District Court of Bolzano, Italy) as follows:

Council Directive 75/363/EEC of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors, as amended by Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363, does not, in the circumstances of the case pending before the referring court, preclude a provision of national law which makes disbursement of the remuneration for doctors studying to become specialists subject to an obligation to work for at least 5 years in the public health service of the Province within 10 years of completing training as a specialist and which, in the event of a total failure to honour that undertaking, expressly permits the Province, as the body funding the remuneration, to reclaim up to 70% of the allowance paid together with statutory interest.

Articles 45 and 49 TFEU do not preclude a provision of national law, such as that applicable in the main proceedings, which makes disbursement of the remuneration for doctors studying to become specialists subject to an obligation to work for at least 5 years in the public health service of the Province within 10 years of completing training as a specialist and which, in the event of a total failure to honour that undertaking, expressly permits the Province, as the body funding the remuneration, to reclaim up to 70% of the allowance paid together with statutory interest.


1      Original language: English.


2      Council Directive of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, p. 14), as amended by Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363 (OJ 1982 L 43, p. 21).


3      Council Directive of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (OJ 1975 L 167, p. 1).


4      Council Directive 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).


5      N. 1. (B.U. 14 gennaio 1986, n. 2).


6      Decreto del Presidente della giunta provinciale 29 marzo 1988, n. 6.


7      Neurology and psychiatry are covered by Directive 75/363, in accordance with Article 7 of Directive 75/362.


8      See, in that regard, judgment of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraph 38.


9      See judgment of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraph 40.


10      See judgments of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraphs 42 and 43, and of 3 October 2000, Gozza and Others, C‑371/97, EU:C:2000:526, paragraph 34.


11      See, to that effect, judgments of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraph 45, and of 3 October 2000, Gozza and Others, C‑371/97, EU:C:2000:526, paragraph 36.


12      See judgment of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraphs 44 and 45. See also judgment of 3 October 2000, Gozza and Others, C‑371/97, EU:C:2000:526, paragraph 34.


13      See judgment of 3 October 2000, Gozza and Others, C‑371/97, EU:C:2000:526, paragraph 43.


14      In that regard, I should clarify that, for the purposes of the application of Directive 75/363, it is wholly irrelevant whether, as a matter of fact, the trainee specialist receives the bursary directly from the Province, or through the university at which the specialisation takes place (as is the case here).


15      See, in particular, the first recital of Directive 75/363.


16      See, among many, judgments of 15 December 1995, Bosman, C‑415/93, EU:C:1995:463, paragraphs 94 to 96 and the case-law cited; of 27 January 2000, Graf, C‑190/98, EU:C:2000:49, paragraphs 21 and 22; and of 16 March 2010, Olympique Lyonnais, C‑325/08, EU:C:2010:143, paragraphs 33 and 34 and the case-law cited.


17      While drawing a direct parallel would be fallacious, I observe that, in certain circumstances, the Court has regarded the restrictive effect of the contested national measure on free movement as too remote, uncertain or insignificant to constitute a restriction on free movement within the meaning of the relevant Treaty provisions. See, for example, judgment of 27 January 2000, Graf, C‑190/98, EU:C:2000:49, paragraph 25. See also judgments of 7 March 1990, Krantz, C‑69/88, EU:C:1990:97, paragraph 11, and of 23 October 2007, Morgan and Bucher, C‑11/06 and C‑12/06, EU:C:2007:626, paragraph 32.


18      See point 88 below.


19      On the inherent incoherence in the approach(es) to potential restrictions in the Court’s case-law, see Azoulai, L., ‘La formule de l’entrave’ in Azoulai, L., (ed.), L’entrave dans le droit du marché intérieur, Bruylant, Brussels, 2011, pp. 1-21.


20      See, among many, judgments of 30 November 1995, Gebhard, C‑55/94, EU:C:1995:411, paragraph 37; of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 44; of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 25; and of 1 June 2010, Blanco Pérez and Chao Gómez, C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 61.


21      Judgment of 28 April 1998, Kohll, C‑158/96, EU:C:1998:171, paragraph 45. See also, inter alia, judgments of 16 May 2006, Watts, C‑372/04, EU:C:2006:325, paragraph 104; of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 46; and of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 27.


22      Judgment of 28 April 1998, Kohll, C‑158/96, EU:C:1998:171, paragraph 50.


23      See, among many, judgment of 5 October 2010, Commission v France, C‑512/08, EU:C:2010:579, paragraph 33.


24      See, for example, judgments of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 51 and the case-law cited, and of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 30.


25      See, inter alia, judgments of 13 May 2003, Müller-Fauré and van Riet, C‑385/99, EU:C:2003:270, paragraph 80; of 16 May 2006, Watts, C‑372/04, EU:C:2006:325, paragraph 109; and of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 33.

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