61989J0061

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1 . Freedom of movement for persons - Freedom of establishment - Provisions of the Treaty - To whom applicable - Scope - Limits

( EEC Treaty, Art . 52 )

2 . Freedom of movement for persons - Freedom of establishment - Doctors - Activities restricted to doctors - Lack of Community harmonization - Definition by the Member States - Inclusion of osteopathy - Permissible

( EEC Treaty, Art . 52 )

1 . Article 52 of the EEC Treaty cannot be interpreted in such a way as to exclude from the benefit of Community law a given Member State' s own nationals where the latter, owing to the fact that they have lawfully resided in the territory of another Member State and have there acquired a vocational qualification which is recognized by the provisions of Community law are, with regard to their Member State of origin, in a situation which may be regarded as equivalent to that of any other person enjoying the rights and liberties guaranteed by the Treaty .

However, it is not possible to disregard the legitimate interest which a Member State may have in preventing certain of its nationals, by means of facilities created under the Treaty, from attempting to evade the application of their national legislation as regards vocational training . That is true in particular where the fact that a national of a Member State has obtained in another Member State a diploma whose scope and value are not recognized by any Community provision might place his Member State of origin under an obligation to allow him to exercise the activities covered by that diploma within its territory even though access to those activities is restricted there to the holders of a higher qualification which enjoys mutual recognition at Community level and there is nothing to indicate that the restriction is arbitrary .

2 . In the absence of harmonization at Community level regarding activities which fall solely within the scope of the practice of medicine, Article 52 of the EEC Treaty does not preclude a Member State from restricting an activity ancillary to medicine such as, in particular, osteopathy exclusively to persons holding the qualification of doctor of medicine .

In Case C-61/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d' appel ( Appeal Court ), Aix-en-Provence, for a preliminary ruling in the criminal proceedings pending before that court against

Marc Gaston Bouchoucha

on the interpretation of Article 52 et seq . of the Treaty establishing the European Economic Community,

THE COURT ( First Chamber )

composed of : Sir Gordon Slynn, President of Chamber, R . Joliet and G . C . Rodríguez Iglesias, Judges,

Advocate General : M . Darmon

Registrar : D . Louterman, Principal Administrator,

after considering the observations submitted on behalf of

Marc Bouchoucha, by Messrs Bureau and Deniniolle, of the Paris Bar,

the SNMOF and the SNMSRRF ( civil parties claiming damages ), by Marie-Monique Picard, of the Lyons Bar,

the French Republic, by Edwige Belliard, Assistant Director for Economic Law at the Ministère des Affaires étrangères, assisted by Sylvie Grassi, Secrétaire des Affaires étrangères, acting as Agents,

the Italian Republic, by Oscar Fiumara, avvocato dello Stato, acting as Agent,

the Commission of the European Communities, by E . Lasnet, a member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing

after hearing oral argument presented by Mr Bouchoucha, the SNMOF, the SNMSRRF, the French Government, represented by G . de Bergues, acting as Agent, the Italian Government and the Commission at the sitting on 6 February 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 6 March 1990

gives the following

Judgment

1 By judgment of 23 January 1989, which was received at the Court Registry on 1 March 1989, the Cour d' appel ( Appeal Court ), Aix-en-Provence, referred to the Court under Article 177 of the EEC Treaty for a preliminary ruling a question on the interpretation of Article 52 et seq . of the EEC Treaty with a view to assessing the compatibility with Community law of a French law prohibiting the unlawful exercise of the profession of doctor .

2 The question was raised in criminal proceedings brought against Marc Gaston Bouchoucha . Mr Bouchoucha, a French national, holds a French State diploma as a masseur-kinesitherapist and a diploma in osteopathy issued on 1 October 1979 by the European School of Osteopathy, Maidstone, Great Britain . He also holds the diploma of "Doctor of Naturopathy" from the London College of Applied Science . However, he holds no diploma, certificate or other qualification entitling him, pursuant to Article L 356-2 of the Code de la santé publique ( French Public Health Code ), to exercise the profession of doctor .

3 On the basis of a summons issued on 24 November 1987 at the request of the Ministère public ( Public Prosecutor' s Office ), proceedings were commenced against Mr Bouchoucha before the Tribunal correctionnel ( Criminal Court ), Nice, on a charge of having illegally practised medicine in Nice since April 1981 by practising as an osteopath although not qualified as a doctor . By virtue of an Order of the Minister for Health of 6 January 1962 ( Journal officiel de la République française of 1.2.1962, p . 1111 ) any "forced mobilization of the joints, reduction of bone displacement, vertebral manipulation and, in general, all treatments described as 'osteopathy' " are regarded as professional acts for whose performance qualification as a doctor is required .

4 By judgment of 29 April 1988, the Tribunal correctionnel found Mr Bouchoucha guilty of the offence of unlawful practice of medicine, fined him - but suspended the fine - and ordered him to pay token damages of one franc to each of the three civil parties claiming damages, the Syndicat national des médecins ostéothérapeutes français (" SNMOF "), the Syndicat national des médecins spécialisés en rééducation et réadaptation fonctionelle (" SNMSRRF ") and the Conseil départemental de l' ordre des médecins des Alpes-Maritimes . Two of the civil parties, the SNMOF and the SNMSRRF, and the Ministère public appealed against that judgment to the Cour d' appel, Aix-en-Provence .

5 The two civil parties and the Ministère public sought confirmation of Mr Bouchoucha' s conviction . The civil parties also claimed payment of compensation for the harm caused to them and publication of the judgment in two local newspapers . Mr Bouchoucha contended that his diploma in osteopathy granted by the European School of Osteopathy entitled him to pursue that activity in Great Britain and that to prohibit him from practising osteopathy in France on the ground that he was not a doctor of medicine was contrary to Article 52 et seq . of the EEC Treaty on freedom of establishment .

6 The Cour d' appel, Aix-en-Provence, therefore referred the following question to the Court for a preliminary ruling :

"Is the prohibition on the practice of osteopathy in France by a French national holding a State diploma as masseur-kinesitherapist and a diploma in osteopathy issued on 1 October 1979 by the European School of Osteopathy, Maidstone ( Great Britain ), on the ground that he does not hold the qualification of Doctor of Medicine laid down as a requirement for that purpose by the Ministerial Order of 6 January 1962 compatible with the Treaty of Rome, in particular Article 52 et seq . thereof on freedom of establishment?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the relevant national and Community legislation, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

8 It must first be stated that both Directive 75/362/EEC 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 ( Official Journal 1975 L 167, p . 1 ) and Directive 75/363/EEC also of 16 June 1975 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors ( Official Journal 1975 L 167, p . 14 ) relate only to the profession of "doctor ". Moreover, there are no Community provisions governing the exercise of professions allied to medicine such as, in particular, osteopathy . It must also be noted that the abovementioned directives contain no Community definition of what activities are to be regarded as those of a doctor .

9 Mr Bouchoucha contends that Community law is applicable by virtue of the fact that, notwithstanding the diploma issued to him in another Member State, he is prevented from practising the activity to which that diploma relates in the State of his nationality . He maintains first that the judgment in Case 115/78 Knoors [1979] ECR 399, is sufficient to rebut the objection that the scope of the present case is purely internal to the Member State concerned and secondly that the provisions of the French Order of 6 January 1962 classifying the treatments known as "osteopathy" as professional acts for which qualification as a doctor is required infringe the Community principle of proportionality .

10 The French Government contends, on the other hand, that in the medical sphere the implementation of the principle of freedom of establishment is based on the mutual recognition of diplomas, case by case, in accordance with the directives adopted for that purpose . However, in the absence of a precise Community definition of the "activities of a doctor", Member States are free to restrict osteopathy and vertebral manipulation to doctors . The judgment in Knoors, supra, is relevant only where the professional training undergone by the person concerned in another Member State has been "recognized by Community law ".

11 It must be pointed out in the first place that, by contrast with the situation in the criminal proceedings against Eleonora Nino and Others ( judgment of today' s date in Joined Cases C-54/88, C-91/88 and C-14/89 ), Mr Bouchoucha, a French national practising in France, holds a professional diploma issued in another Member State . It follows that the scope of the present case is not purely national and the applicability of the EEC Treaty provisions on freedom of establishment must be considered .

12 Secondly, it must be observed that in so far as there is no Community definition of medical acts, the definition of acts restricted to the medical profession is, in principle, a matter for the Member States . It follows that in the absence of Community legislation on the professional practice of osteopathy each Member State is free to regulate the exercise of that activity within its territory, without discriminating between its own nationals and those of the other Member States .

13 It is apparent from the judgment in Knoors, supra, that Article 52 of the EEC Treaty cannot be interpreted in such a way as to exclude from the benefit of Community law a given Member State' s own nationals where the latter, owing to the fact that they have lawfully resided in the territory of another Member State and have there acquired a vocational qualification which is recognized by the provisions of Community law are, with regard to their Member State of origin, in a situation which may be regarded as equivalent to that of any other person enjoying the rights and liberties guaranteed by the Treaty ( paragraph 24 ).

14 However, as has been rightly pointed out by the French Government, the SNMOF and the SNMSRRF, the diploma from the European School of Osteopathy held by Mr Bouchoucha does not at present enjoy any mutual recognition within the Community . It cannot therefore be regarded as a professional qualification recognized by the provisions of Community law . Furthermore, according to Knoors, supra, it is not possible to disregard the legitimate interest which a Member State may have in preventing certain of its nationals, by means of facilities created under the Treaty, from attempting to evade the application of their national legislation as regards vocational training ( paragraph 25 ).

15 That is true in particular where the fact that a national of a Member State has obtained in another Member State a diploma whose scope and value are not recognized by any Community provision might place his Member State of origin under an obligation to allow him to exercise the activities covered by that diploma within its territory even though access to those activities is restricted there to the holders of a higher qualification which enjoys mutual recognition at Community level and there is nothing to indicate that the restriction is arbitrary .

16 It must therefore be stated in reply to the question submitted by the Cour d' appel, Aix-en-Provence, that in the absence of harmonization at Community level regarding activities which fall solely within the scope of the practice of medicine, Article 52 of the EEC Treaty does not preclude a Member State from restricting an activity ancillary to medicine such as, in particular, osteopathy exclusively to persons holding the qualification of doctor of medicine .

Costs

17 The costs incurred by the French and Italian Governments and the Commission of the European Communities, which submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( First Chamber ),

in reply to the question submitted to it by the Cour d' appel, Aix-en-Provence, by judgment of 23 January 1989, hereby rules :

In the absence of harmonization at Community level regarding activities which fall solely within the scope of the practice of medicine, Article 52 of the EEC Treaty does not preclude a Member State from restricting an activity ancillary to medicine such as, in particular, osteopathy exclusively to persons holding the qualification of doctor of medicine .