61985J0221

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FREE MOVEMENT OF PERSONS - FREEDOM OF ESTABLISHMENT - NATIONAL RULES ON THE ACTIVITIES OF CLINICAL BIOLOGY LABORATORIES - PERMISSIBILITY - CONDITIONS - THE PRINCIPLE OF EQUAL TREATMENT TO BE RESPECTED

( EEC TREATY, ART . 52, SECOND PARAGRAPH )

IT IS CLEAR FROM THE SECOND PARAGRAPH OF ARTICLE 52 OF THE TREATY AND ITS CONTEXT THAT, PROVIDED THAT IT RESPECTS THE PRINCIPLE THAT NATIONALS OF OTHER MEMBER STATES MUST BE ACCORDED THE SAME TREATMENT AS ITS OWN NATIONALS, EACH MEMBER STATE IS, IN THE ABSENCE OF COMMUNITY RULES IN THIS AREA, FREE TO LAY DOWN RULES FOR ITS OWN TERRITORY GOVERNING THE ACTIVITIES OF LABORATORIES PROVIDING CLINICAL BIOLOGY SERVICES .

IN CASE 221/85

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JACQUES DELMOLY, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

KINGDOM OF BELGIUM, REPRESENTED BY ROBERT HOEBAER, DIRECTOR AT THE MINISTRY OF FOREIGN AFFAIRS, EXTERNAL TRADE AND CO-OPERATION WITH DEVELOPING COUNTRIES, ACTING AS AGENT, ASSISTED BY HUGO VANDENBERGHE, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, 4 RUE DES GIRONDINS,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT, BY PROVIDING THAT SERVICES IN THE FIELD OF CLINICAL BIOLOGY CARRIED OUT IN LABORATORIES OPERATED BY A LEGAL PERSON GOVERNED BY PRIVATE LAW WHOSE MEMBERS, PARTNERS OR DIRECTORS ARE NOT ALL NATURAL PERSONS AUTHORIZED TO CARRY OUT MEDICAL ANALYSES MAY NOT BE REIMBURSED UNDER THE SOCIAL SECURITY SYSTEM, THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 52 OF THE EEC TREATY,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, T . F . O' HIGGINS AND F . SCHOCKWEILER, PRESIDENTS OF CHAMBERS, G . BOSCO, O . DUE, U . EVERLING, K . BAHLMANN, R . JOLIET AND J . C . MOITINHO DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : C.O . LENZ

REGISTRAR : J . A . POMPE, DEPUTY REGISTRAR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 14 OCTOBER 1986,

HAVING HEARD THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 2 DECEMBER 1986,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 20 JUNE 1985, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 52 OF THE EEC TREATY BY PROVIDING THAT SERVICES IN THE FIELD OF CLINICAL BIOLOGY CARRIED OUT IN LABORATORIES OPERATED BY A LEGAL PERSON GOVERNED BY PRIVATE LAW WHOSE MEMBERS, PARTNERS OR DIRECTORS ARE NOT ALL NATURAL PERSONS AUTHORIZED TO CARRY OUT MEDICAL ANALYSES MAY NOT BE REIMBURSED UNDER THE SOCIAL SECURITY SCHEME .

2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE BELGIAN LEGISLATION ON SERVICES IN THE FIELD OF CLINICAL BIOLOGY, THE BACKGROUND TO THE APPLICATION AND THE ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

3 THE COMMISSION CONSIDERS THAT BELGIAN ROYAL DECREE NO . 143 OF 30 DECEMBER 1982, LAYING DOWN THE CONDITIONS WHICH A LABORATORY MUST SATISFY IN ORDER FOR CLINICAL BIOLOGY SERVICES TO QUALIFY FOR REIMBURSEMENT FROM THE SICKNESS INSURANCE SCHEME, IS INCOMPATIBLE WITH ARTICLE 52 OF THE TREATY .

4 WHERE A LABORATORY IS OPERATED FOR PROFIT BY A LEGAL PERSON, THE DECREE REQUIRES THAT ALL ITS MEMBERS, PARTNERS AND DIRECTORS SHOULD BE DOCTORS OR PHARMACISTS . AS A RESULT IT IS IMPOSSIBLE FOR COMPANIES ESTABLISHED IN ANOTHER MEMBER STATE TO SET UP SECONDARY ESTABLISHMENTS, ESPECIALLY SUBSIDIARY COMPANIES, IN BELGIUM .

5 FURTHERMORE, THE COMMISSION MAINTAINS THAT THE RESTRICTIONS ON THE RIGHT OF ESTABLISHMENT PROHIBITED BY ARTICLE 52 OF THE TREATY ARE NOT CONFINED TO DISCRIMINATORY MEASURES BUT INCLUDE MEASURES WHICH APPLY TO BOTH NATIONALS AND FOREIGNERS WITHOUT DISTINCTION WHERE THEY CONSTITUTE AN UNJUSTIFIED CONSTRAINT FOR THE LATTER .

6 THE COMMISSION ADDS THAT THE ABOVEMENTIONED CONDITIONS WHICH LABORATORIES MUST SATISFY UNDER DECREE NO 143 ARE NOT NECESSARY TO PREVENT EXCESSIVE RECOURSE TO CLINICAL BIOLOGY SERVICES . ON THE ONE HAND, THE DANGER OF EXCESSIVE RECOURSE TO ANALYSES IS IN GENERAL ATTRIBUTABLE PRINCIPALLY TO THE PRESCRIBING DOCTOR, SINCE AN ANALYSIS REQUESTED BY HIM CAN HARDLY BE REFUSED BY THE LABORATORY . SECONDLY, IF THERE IS ANY COLLUSION, ARTICLE 9 OF ROYAL DECREE NO 143 PROVIDES FOR THE POSSIBILITY OF PENALIZING THE OPERATOR OF THE LABORATORY, WHETHER OR NOT HE IS A PERSON ENTITLED TO CARRY OUT ANALYSES .

7 THE BELGIAN GOVERNMENT CONSIDERS THAT IT HAS EXCLUSIVE POWER TO LAY DOWN RULES GOVERNING THE ACTIVITY IN QUESTION AND SUCH RULES ARE COMPATIBLE WITH COMMUNITY LAW IN SO FAR AS THEY DO NOT DISCRIMINATE AGAINST NATIONALS OF OTHER MEMBER STATES AND COMPANIES ASSIMILATED TO THEM BY VIRTUE OF ARTICLE 58 OF THE EEC TREATY .

8 IT ALSO CONTENDS THAT THE CONTESTED ROYAL DECREE PURSUES A PURPOSE WHICH IS IN THE PUBLIC INTEREST, NAMELY THE PREVENTION OF EXCESSIVE RECOURSE TO CLINICAL BIOLOGY SERVICES WHICH, THE BELGIAN GOVERNMENT BELIEVES, MIGHT RESULT FROM COLLUSION BETWEEN PRESCRIBING DOCTORS AND LABORATORIES . THAT IS WHY THE LAW PROVIDES FOR CLINICAL BIOLOGY SERVICES TO BE REIMBURSED ONLY IF THE LABORATORY IN QUESTION IS OPERATED BY A DOCTOR OR PHARMACIST OR, WHERE IT IS OPERATED FOR PROFIT BY A LEGAL PERSON, ONLY IF ITS MEMBERS, PARTNERS OR DIRECTORS ARE DOCTORS OR PHARMACISTS . THOSE PROFESSIONS ARE SUBJECT TO DISCIPLINARY RULES LAID DOWN BY THE RESPECTIVE GOVERNING BODIES, THE EFFECTIVENESS OF WHICH HAS BEEN DEMONSTRATED IN PRACTICE, IN PARTICULAR AS REGARDS THE PREVENTION OF PRESCRIPTION ABUSES . THE POSSIBILITY OF CRIMINAL SANCTIONS, SUCH AS THOSE PROVIDED FOR IN ARTICLE 9 OF THE ROYAL DECREE, IS INSUFFICIENT .

9 IN THE FIRST PLACE IT MUST BE STRESSED THAT UNDER THE SECOND PARAGRAPH OF ARTICLE 52 OF THE EEC TREATY FREEDOM OF ESTABLISHMENT INCLUDES THE RIGHT TO TAKE UP AND PURSUE ACTIVITIES AS SELF-EMPLOYED PERSONS UNDER THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THE COUNTRY OF ESTABLISHMENT FOR ITS OWN NATIONALS . IT IS CLEAR FROM THAT PROVISION AND ITS CONTEXT THAT, PROVIDED THAT SUCH EQUALITY OF TREATMENT IS RESPECTED, EACH MEMBER STATE IS, IN THE ABSENCE OF COMMUNITY RULES IN THIS AREA, FREE TO LAY DOWN RULES FOR ITS OWN TERRITORY GOVERNING THE ACTIVITIES OF LABORATORIES PROVIDING CLINICAL BIOLOGY SERVICES .

10 SECONDLY, THE COURT HAS ALREADY OBSERVED, IN PARTICULAR IN ITS JUDGMENT OF 28 JANUARY 1986 IN CASE 270/83 ( COMMISSION V FRENCH REPUBLIC (( 1986 )) ECR 273 ), THAT ARTICLE 52 IS INTENDED TO ENSURE THAT ALL NATIONALS OF MEMBER STATES WHO ESTABLISH THEMSELVES IN ANOTHER MEMBER STATE, EVEN IF THAT ESTABLISHMENT IS ONLY SECONDARY, FOR THE PURPOSE OF PURSUING ACTIVITIES THERE AS A SELF-EMPLOYED PERSON RECEIVE THE SAME TREATMENT AS NATIONALS OF THAT STATE AND IT PROHIBITS, AS A RESTRICTION ON FREEDOM OF ESTABLISHMENT, ANY DISCRIMINATION ON GROUNDS OF NATIONALITY .

11 IT MUST BE STATED THAT BELGIAN LAW DOES NOT PREVENT DOCTORS OR PHARMACISTS WHO ARE NATIONALS OF OTHER MEMBER STATES FROM ESTABLISHING THEMSELVES IN BELGIUM AND OPERATING THERE A LABORATORY TO CARRY OUT CLINICAL ANALYSES QUALIFYING FOR REIMBURSEMENT UNDER THE SOCIAL SECURITY SYSTEM . THE LEGISLATION THEREFORE APPLIES WITHOUT DISTINCTION TO BELGIAN NATIONALS AND THOSE OF OTHER MEMBER STATES, AND ITS PROVISIONS AND OBJECTIVES DO NOT PERMIT THE CONCLUSION THAT IT WAS ADOPTED FOR DISCRIMINATORY PURPOSES OR THAT IT PRODUCES DISCRIMINATORY EFFECTS .

12 IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, IT MUST BE CONCLUDED THAT THE BELGIAN STATE, BY ADOPTING ROYAL DECREE NO 143 OF 30 DECEMBER 1982, HAS NOT FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 52 OF THE EEC TREATY AND THE APPLICATION MUST BE DISMISSED .

COSTS

13 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS BEEN UNSUCCESSFUL IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

On those grounds,

THE COURT

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the Commission to pay the costs .