61990J0351

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Freedom of movement for persons ° Freedom of establishment ° Workers ° Medical practitioners, dentists and veterinary surgeons ° Access to those professions ° Restrictions justified on public health grounds ° Whether permissible ° Conditions and limits ° Single-practice rule barring access to the professions where a practice is maintained in another Member State ° Incompatibility with Treaty

(EEC Treaty, Arts 48 and 52)

Nationals of a Member State who practise their profession in another Member State are bound to observe the rules that govern the practice in that Member State of the profession in question. Where the professions of doctor, dentist and veterinary surgeon are concerned, those rules are in particular those inspired by concern to protect the health of humans and animals as efficiently and fully as possible. However, in so far as the rules have the effect of restricting the right of establishment and the freedom of movement of workers, they are compatible with the Treaty only if the restrictions which they entail are actually justified by the general obligations inherent in the practice of the professions in question and are imposed on nationals of that State as well as on nationals of other Member States. That is not the case where the restrictions are liable to create discrimination against practitioners established in other Member States or raise obstacles to access to the profession which go beyond what is necessary to achieve the intended objectives.

Consequently, national legislation providing for the single-practice rule and having the effect of preventing doctors, dentists and veterinary surgeons established in another Member State or working there as employed persons from establishing themselves or working as employed persons while maintaining their practice or employment in that Member State is incompatible with Articles 48 and 52 of the Treaty. Such legislation, which is in any event applied more strictly to practitioners practising in other Member States than to those practising in the national territory, is too absolute and general in nature for it to be justified by the need to provide permanent care and to organize the emergency service efficiently, aims which could be achieved in less restrictive ways.

In Case C-351/90,

Commission of the European Communities, represented by its Legal Adviser Étienne Lasnet, acting as Agent, with an address for service in Luxembourg at the Chambers of Guido Berardis, Centre Wagner, Kirchberg,

applicant,

v

Grand Duchy of Luxembourg, represented by Louis Schiltz, of the Luxembourg Bar, with an address for service at his chambers, 2 Rue du Fort Rheinsheim,

defendant,

APPLICATION for a declaration that, by not providing that the rule laid down in its legislation to the effect that persons exercising the professions of doctor, dentist and veterinary surgeon must have a single practice does not prevent nationals of Member States established in another Member State or working there as employed persons who wish to establish themselves in Luxembourg or work there as employed persons from maintaining their practice or continuing to be employed in a Member State other than Luxembourg, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 48 and 52 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, F.A. Schockweiler, F. Grévisse and P.J.G. Kapteyn, (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, M. Díez de Velasco and M. Zuleeg, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 10 March 1992,

after hearing the Opinion of the Advocate General at the sitting on 25 March 1992,

gives the following

Judgment

1 By application lodged at the Court Registry on 28 November 1990, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by not providing that the rule laid down in its legislation to the effect that persons exercising the professions of doctor, dentist or veterinary surgeon must have a single practice does not prevent nationals of Member States established in another Member State or working there as employed persons who wish to establish themselves in Luxembourg or work there as employed persons from maintaining their practice or continuing to be employed in a Member State other than Luxembourg, the Grand Duchy of Luxembourg had failed to fulfil its obligations under Articles 48 and 52 of the EEC Treaty.

2 The legislation at issue is contained in the Law of 29 April 1983 concerning the exercise of the professions of medicine, dentistry and veterinary medicine (Gazette A ° No 31 of 10 May 1983, p. 746, hereinafter referred to as "the Law"). Article 16 of the Law provides that a doctor or dentist may not have more than one surgery. Article 29 contains a similar provision for veterinary surgeons, in so far as it provides that they may have only one place of establishment.

3 However, the second sentence of Article 16 of the Law provides that:

"... a doctor or dentist established in Luxembourg may be authorized by the Minister of Health, on the advice of the College of Physicians, to have a second surgery in the country for regular consultations, on condition that the surgery is in a region where there is no doctor practising the same discipline or no dentist, and where medical cover for the region is insufficient."

4 Articles 2(2) and 9 of the Law allow a doctor or dentist established in another Member State to practise in Luxembourg as a substitute for a doctor or dentist who is established there. According to Article 22(2) of the Law, the same applies to veterinary surgeons.

5 Finally, Articles 4, 11 and 25 of the Law authorize doctors, dentists or veterinary surgeons who are nationals of a Member State of the Community and who are established in another Member State to provide services in Luxembourg.

6 By a letter dated 19 April 1989, the Commission drew to the attention of the Luxembourg authorities the question whether the single-practice rule, imposed on doctors, dentists and veterinary surgeons by the Law, was compatible with Community law.

7 Having received no reply to that letter, on 21 November 1989 the Commission issued a reasoned opinion in accordance with Article 169 of the EEC Treaty, requesting the Luxembourg Government to adopt the measures necessary for compliance with its obligations within two months of notification.

8 By a letter dated 29 January 1990, the Luxembourg Government challenged the terms of the reasoned opinion, pleading that the Law is neither ambiguous nor discriminatory as regards the nationals of Member States having an establishment in a Member State other than Luxembourg. Considering this line of argument to be unsatisfactory, the Commission brought this action.

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning

of the Court.

10 It must be stated first of all that the so-called single-practice rule for the medical, dental and veterinary professions has the effect of restricting the freedom of movement of workers and the right of establishment which are guaranteed by Articles 48 and 52 of the Treaty.

11 It should be borne in mind that it is settled case-law (see, for example, the judgment in Case 107/83 Ordre des Avocats au Barreau de Paris v Klopp [1984] ECR 2971, paragraph 19; the judgment in Case 143/87 Stanton and SA Belge d' Assurances L' Etoile 1905 v Inasti [1988] ECR 3877, paragraph 11 and the judgment in Joined Cases 154 and 155/87 Rijksinstituut voor de Sociale Verzekering der Zelfstandigen v Wolf and NV Microtherm Europe and Others [1988] ECR 3897, paragraph 11; the judgment in Case 106/91 Ramrath, not yet published in the ECR, paragraph 20), that the right of establishment entails the freedom to set up and maintain, subject to observance of the professional rules of conduct, more than one place of work within the Community.

12 Those considerations are equally valid where an employee or an independent practitioner, established in one Member State, wishes to practise his profession in another Member State, irrespective of the question whether he intends to practise as an employee or as an independent practitioner (see paragraph 12 of the judgments in the abovementioned Cases 143/87 and 154 and 155/87 and paragraphs 25 and 26 of the abovementioned judgment in Case 106/91).

13 As the Court acknowledged in its judgment in Case 96/85 Commission v France [1986] ECR 1475, at paragraph 10, as far as the medical and dental professions are concerned, the professional rules that must be observed are in particular those inspired by concern to protect the health of individuals as efficiently and fully as possible. The rules governing practice of the veterinary profession must be regarded as meeting the same health objective.

14 It is apparent, however, from that judgment that those rules, in so far as they have the effect of restricting in particular the right of establishment and the freedom of movement of workers, are compatible with the Treaty only if the restrictions which they entail are actually justified in view of the general obligations inherent in the proper practice of the professions in question and apply to nationals of that State and to the nationals of other Member States alike. In this connection, the Court has found that such was not the case where the restrictions were liable to create discrimination against practitioners established in other Member States or raise obstacles to access to the profession which go beyond what is necessary in order to achieve the intended objectives.

15 In this regard, it must be observed first of all that the single-practice rule, which, according to the Luxembourg Government is essential to continuity of care, is applied more strictly to doctors and dentists practising in other Member States than to those practising in Luxembourg. The second sentence of Article 16 of the Law permits derogation from the single-practice rule only for persons practising in Luxembourg.

16 On this point, the Luxembourg Government contends that in special cases that derogation may be extended by ministerial decision to persons established in other Member States.

17 This argument cannot be accepted. First of all, Article 16 of the Law refers only to practitioners established in Luxembourg. Secondly, observance of the principles of equality of treatment cannot depend on the unilateral will of national authorities.

18 It must therefore be observed that, although the objective legal position is clear, in the sense that Articles 48 and 52 of the Treaty are directly applicable in the territory of Member States, the maintenance of Article 16 of the Law in question still gives rise to an ambiguous situation by keeping the entitled persons concerned in a state of uncertainty as to the possibilities open to them to rely on Community law (see the judgment in Case 167/73 Commission v France [1974] ECR 359, at paragraph 41).

19 It must be observed next that a general rule prohibiting practitioners established in another Member State or employed there from carrying on their practice from an establishment in Luxembourg is unduly restrictive.

20 In this respect, the Luxembourg Government contends that the single-practice rule is objectively justified on the grounds of public health and public policy, and also on the grounds of the general interest. It states that a medical contract is a contract intuitu personae, requiring the continuous presence of the practitioner at his surgery or place of employment in order to ensure that care is permanently available, and states that the emergency service would be disrupted if practitioners with more than one place of work helped to provide it.

21 This argument cannot be accepted either.

22 First, it is not essential for a practitioner, whether general practitioner, dentist or veterinary surgeon, or even a medical specialist (see the judgment in Case 96/85 Commission v France [1986] ECR 1475, at paragraph 13, cited above), to be close to the patient or client all the time. Moreover, the practitioner' s permanent availability is not necessarily guaranteed by the single-practice rule when, for example, the practitioner is travelling, or practises part-time or belongs to a group practice. Secondly, the permanent availability of care and the efficient organization of the emergency service may be achieved in less restrictive ways, such as by requiring minimum attendance or having arrangements for providing replacements.

23 From these considerations it is apparent that the prohibition in question is too absolute and general in nature for it to be justified by the need to have care permanently available.

24 It must therefore be declared that by preventing doctors, dentists and veterinary surgeons established in another Member State or working there as employed persons from establishing themselves in Luxembourg or holding employment there while maintaining their practice or employment in that other Member State, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 48 and 52 of the EEC Treaty.

Costs

25 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the defendant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby rules:

1. By preventing medical practitioners, dentists and veterinary surgeons established in another Member State or working there as employed persons from establishing themselves in Luxembourg or holding employment there while maintaining their practice or employment in that other Member State, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 48 and 52 of the EEC Treaty;

2. The Grand Duchy of Luxembourg is ordered to pay the costs.