C-221/85

Mr President, 4. by a legal person governed by private Members of the Court, law, except such non-profit-making legal persons as fall within paragraph (7) below, whose members, partners or A —1. In the proceedings in which I am directors, as the case may be, are exclu­ giving my opinion today, the applicant, the sively persons falling within paragraph Commission of the European Communities, (3) above complains that the defendant, the Kingdom of Belgium, by adopting Royal Decree No 4. If a laboratory does not comply with 143 of 30 December 1982 on the reimbur­ these requirements, the laboratory services sement of costs by the Belgian national carried out by it are not reimbursed by the sickness insurance scheme in respect of national sickness insurance scheme. services provided in the field of clinical biology (hereinafter referred to as 'laboratory services'), has failed to fulfil its 5. Article 7 of the decree provides that if obligations under Article 52 of the EEC the owner of the business premises or the Treaty and has thus infringed the principle equipment is not the person by whom the of the freedom of establishment. laboratory is operated, the amount payable by the latter may only be a lump sum equal to the normal amount payable for the hire, 2. The decree renders more difficult the depreciation or leasing on the basis of the establishment of laboratories from other value of the capiul investments. Member States by providing that their costs will not be reimbursed by the Belgian 6. A number of foreign firms requested a national sickness insurance scheme. The Brussels court to suspend the operation of Commission contests in particular the the decree. When their application was provision of the decree which prescribes the refused, they brought an action for the organizational form in which laboratories annulment of the decree before the Conseil must be operated if their costs are to be d'Etat, which has not yet given its decision. covered by the sickness insurance scheme. Finally, they conucted the Commission which, in 1983, initiated a procedure against Belgium for failure to fulfil its obligations 3. The provisions of Article 3 (3) and (4), under the Treaty. which are relevant in the present proceedings, provide that the laboratories must be operated either: 7. As originally drafted, Article 11 of the decree provided that the conditions laid down in Article 3 were to be fulfilled at the '3. by one or more persons entitled to latest within seven months of the publication provide services in the field of clinical of the decree in the Belgian Official Journal. biology who do in fact carry out That time-limit has been extended on analyses in the laboratory and who are several occasions. Under Article 21 of Law not prescribing doctors; or No 85/101 of 22 January 1985, the

Government is now authorized to fix the I I — The substance time-limit, but has not yet exercised that power. 12. At the beginning of my examination of the content of the Belgian rules at issue, I Conclusions of the parties wish once again to set out those rules and their scope as they appear from the decree itself and from the explanations provided by 8. The applicant claims that the Court the parties. should: 13. Royal Decree No 143 of 30 December 1. Declare that, by providing that reimbur­ 1982 does not govern the activities and sement may be made in respect of organizational form of clinical biology lab­ services in the field of clinical biology oratories in general; their establishment and carried out in laboratories operated by a activities are not affected by the decree. legal person governed by private law only if the members, partners or directors 14. The rules laid down by the contested thereof are natural persons authorized to decree apply only if the services carried out carry out medical analyses, the Kingdom by such laboratories are to be reimbursed by of Belgium has failed to fulfil its obli­ the Belgian social security scheme. gations under the EEC Treaty, in However, those are the most important particular Article 52 thereof; laboratory services, since the observations of the parties in this respect concur that lab­ 2. Order the Kingdom of Belgium to pay oratories whose services are not reimbursed the costs. by the sickness insurance scheme are not economically viable. 9. The defendant contends that the Court should: 15. Nor does the contested decree regulate the ownership of the premises and equipment used by laboratories. Thus the 1. Declare the application inadmissible, and, laboratories may be owned by natural or in the alternative, unfounded; legal persons who do not fulfil the conditions laid down in Article 3 of the 2. Order the Commission to pay the costs. decree. However, the economic exploitation of the laboratory equipment is restricted by Article 7 of the decree: if the person 10. The observations of the parties are set operating the laboratory is not the same as out, so far as is necessary, in the framework the owner thereof, the amount payable to of the examination of the substance. For the the owner may only be a lump sum which remainder, reference is made to the Report corresponds to an appropriate amount for the Hearing. payable for hire, depreciation or leasing. That rules out in particular an amount calculated by reference to profit or B —My view on these proceedings is as turnover. follows :

18. Thus, as the applicant itself concedes, the national treatment prescribed by the second paragraph of Article 52 of the EEC 22. In its judgment the Court of Justice Treaty for the freedom of establishment, held that Article 52 et seq. of the EEC that is to say the right to take up and pursue Treaty prevented the competent authorities activities as self-employed persons and to set of a Member State from denying, on the up and manage undertakings under the basis of the national legislation and the rules conditions laid down for its own nationals by of professional conduct which were in force the law of the country where such estab- in that State, to a national of another lishment is effected, is guaranteed. Member State the right to enter and to exercise the legal profession solely on the ground that he maintained chambers simul­ taneously in another Member State. In the grounds of its decision the Court of Justice 19. The applicant, however, takes the view stated that the fact that freedom of estab­ that the restrictions prohibited by Article 52 lishment was not confined to the right to of the EEC Treaty must be considered to create a single establishment within the include not only discriminatory measures Community was confirmed by the very but also measures which are applied without words of Article 52 of the Treaty, according distinction to a Member State's own to which the progressive abolition of the nationals and foreigners, if they constitute restrictions on freedom of establishment an unjustified burden on the latter. Lastly, it applied to restrictions on the setting-up of states that the right of establishment also agencies, branches or subsidiaries by includes the right to set up agencies, nationals of any Member State established branches or subsidiaries. in the territory of another Member State.

That rule had to be regarded as a specific outside its territory, since it did not have the statement of a general principle, applicable power in its national legislation to adopt equally to the liberal professions, that the rules applying throughout the territory of right of establishment included the freedom the Community. to set up and maintain, subject to observance of the professional rules of conduct, more than one place of work within the Community. 26. It is also clear from the judgment of the Court of Justice of 10 July 1986 in Case 79/85, to which the applicant referred at the hearing, that the freedom of establishment

27. That was reiterated in the judgment of lished in a particular Member State would the Court of Justice of 6 November 1984 in otherwise be able to enjoy the freedom Case 182/83, 3 to which the applicant under the Treaty to establish himself in referred at the hearing. The proceedings in another Member State only at the price of that case concerned the question whether, abandoning the establishment he already having regard to the rules laid down in the had. Treaty, nationals of other Member States who have exercised their right of estab lishment in Ireland under Article 52 of the Treaty by participating in the formation of a

25. It must therefore be concluded that there is nothing in the aforesaid judgment of the Court of Justice to prevent a Member State from adopting rules governing the 28. In short it should at this point be stated exercise of a particular profession in its that in the aforesaid decisions of the Court territory or from applying such rules to of Justice there is nothing which could nationals of other Member States 'under the support the applicant's view that even conditions laid down for its own nationals measures which are applied without by the law of the country where such estab distinction to a Member State's own lishment is effected'.

OPINION OF MR LENZ — CASE 221/85

6 own nationals is no longer sufficient to 11/77 that in the application of Article 52 ensure the effectiveness in practice of the of the EEC Treaty the principle that a fundamental freedom of the right of estab- Member State must treat nationals of other lishment, guaranteed by the EEC Treaty. In Member States in the same way as its own particular, there appears to be no basis for nationals is of primary importance. That arguing that national rules on the exercise was recently confirmed by the Court of of a profession which are applied without Justice in its judgment of 28 January 1986 distinction to a State's own nationals and in Case 270/83, 7in which it stated that those of another Member State could be Article 52 embodied one of the fundamental tested by reference to the principle of principles of the Community and has been proportionality even if the scope of the directly applicable in the Member States freedom of establishment governed by since the end of the transitional period. Community law is not affected. Article 52 was intended to ensure that all nationals of Member States established in another Member State received the same

COMMISSION v BELGIUM

C — 36. In view of the foregoing considerations, I propose that the Court dismiss the application and order the applicant to pay the costs.