Background to the complaint

1. The complainant worked as a dermatologist in private clinics in Italy for about 30 years without having a diploma of specialisation as a dermatologist.

2. Since 2015, the complainant has been unsuccessfully trying to register as a dermatologist in Estonia. The complainant does not have a certificate of medical specialisation as required by the Professional Qualifications Directive[2]. The Estonian authorities therefore registered him as a general practitioner, but not as dermatologist.

3. In January 2017, the complainant turned to the European Commission, complaining that Estonia was breaching EU law[3]. The complainant considered that the Estonian authorities should have registered him as dermatologist under the Professional Qualifications Directive.

4. In November 2017, the Commission closed the case, arguing that it is for national authorities to decide on individual applications for the recognition of professional qualifications.

5. Dissatisfied with the Commission’s reply, the complainant turned to the Ombudsman in December 2017.

The inquiry

6. The complainant considers that the Commission should have opened an infringement procedure[4] against Estonia for violating the Professional Qualifications Directive and it should have explained to the Estonian authorities how to correctly apply the Professional Qualifications Directive in his case.

7. In the course of the inquiry, the Ombudsman inquiry team also sought information from the Estonian Ombudsman office and SOLVIT, to which the complainant had also turned on the matter.

Arguments presented to the Ombudsman

8. The complainant states that he is allowed to work as a dermatologist in private clinics in Italy, although he does not have a diploma of specialisation in dermatology. In accordance with Italian law[5], doctors without a specialist diploma who have worked in a specialist field for a certain number of years can advertise themselves as working in that branch of medicine.

9. The complainant considers that, according to Article 4 of the Professional Qualifications Directive, the Estonian authorities should have granted him access to the same profession that he is allowed to pursue in Italy[6]. It is the complainant’s view that the decision of the Estonian authorities violated his right to free movement protected by EU Treaties[7] and his fundamental right to work enshrined in the Charter of Fundamental Rights of the European Union[8].

10. In reply to the complainant’s infringement complaint, the Commission stated that medical specialists[9] and general practitioners[10] are granted a number of acquired rights under the Professional Qualifications Directive. However, the Professional Qualifications Directive does not require Member States to regulate medical specialisations. It is up to each Member State to decide whether to regulate certain medical specialisations and whether to reserve specialist activities and the use of specialist titles to holders of specific qualifications, as long as the measure taken are justified and proportionate. As regards specialist titles, the Professional Qualifications Directive explicitly lists the specialist titles that can be automatically recognised in other EU countries.

11. The Commission also stated that it can neither interfere in, nor decide on, individual applications for the recognition of qualifications. Such requests fall within the competence of national authorities, which must provide for the possibility to appeal their decisions[11].

12. The Commission suggested to the complainant to contact SOLVIT[12], should he consider to have been denied recognition of professional qualifications on unfair grounds.

The Ombudsman's assessment

13. The Commission is responsible[13] for overseeing the effective application, implementation and enforcement of EU law by the Member States. In the event that a Member State fails to fulfil an obligation under the Treaties, the Commission can take measures (infringement proceedings) to bring this infringement to an end. In this role, the Commission enjoys a wide margin of discretion[14], and acts on the basis of its policy on the monitoring of the application and implementation of EU law by Member States[15] .

14. The Commission’s enforcement policy is of a strategic nature: the Commission prioritises its enforcement efforts on the most important breaches of EU law affecting the interests of citizens. The Commission gives priority to cases where the incorrect application of EU law is of a systemic nature, that is, an incorrect application that is not limited to an individual case[16].

15. The Commission has provided the complainant with a reasonable reply to his infringement complaint. The complaint to the Commission was that Estonian authorities had incorrectly applied EU law in the complainant’s individual case. However, it is not the Commission’s role to assess an individual case of application of EU law at national level. It was thus appropriate for the Commission to advise the complainant to turn to SOLVIT for that purpose, as his case concerned a cross-border problem involving national authorities.

16. It was also reasonable for the Commission not to deal with the complainant’s issue as an indication of a systemic problem in the implementation of EU law in Estonia, given the individual nature of the complaint and in light of the fact that, according to the information obtained by the Ombudsman’s inquiry team, neither SOLVIT, nor the Estonian Ombudsman found any breach of the applicable rules by the Estonian authorities in the complainant’s case.

17. In the light of the above, the Commission did not act with maladministration in handling the complainant’s infringement complaint[17].

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

The European Commission did not act with maladministration in handling the complainant’s infringement complaint.

The complainant and the European Commission will be informed of this decision.

 

Tina Nilsson

Head of Inquiries - Unit 4

Strasbourg, 11/07/2018

 

 

[1] Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications.

[2] Article 27 “Acquired rights specific to specialised doctors” of Directive 2005/36/EC.

[3] Infringement complaint registered as CHAP(2017)00280.

[4] https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en

[5] Article 1, paragraph 4 of law n. 175 of 5 February 1992.

[6] Article 4 of the Professional Qualifications Directive.

[7] See Article 45 of the Treaty on the Functioning of the European Union.

[8] Article 15 of the Charter of Fundamental Rights of the European Union.

[9] Article 23 of the Professional Qualifications Directive.

[10] Article 27 of the Professional Qualifications Directive.

[11] Article 51(3) of the Professional Qualifications Directive.

[12] http://ec.europa.eu/solvit/index_en.htm. SOLVIT helps EU citizens who face obstacles in another EU country because a public authority is not doing what is required under EU law.

[13] Article 17(1) Treaty on European Union and Article 258 Treaty on the Functioning of the European Union. 

[14] Judgment of the Court (Second Chamber) of 14 February 1989, Star Fruit v Commission, 247/87, ECLI:EU:C:1989:58, paragraph 11.  

[15] Communication from the Commission, EU law: Better results through better application, OJ 2017 C 18, available at: https://ec.europa.eu/info/publications/communication-commission-eu-law-better-results-through-better-application_en  

[16] Point 3 of the Communication.

[17] This complaint has been dealt with under delegated case handling, in accordance with Article 11 of the Decision of the European Ombudsman adopting Implementing Provisions