C-61/89
ECLI:EU:C:1990:93
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BOUCHOUCHA
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 6 March 1990 *
Mr President, Pierini. 1 The fact that the practice of oste Members of the Court, opathy was carried on by virtue of a diploma issued in another Member State may under certain conditions, according to previous decisions of this Court, in 2 particular its judgment in Knoors, constitute a factor establishing a connection 1. The question submitted for a preliminary with Community law. I shall not therefore ruling by the Cour d'appel (Appeal Court), propose, as I have done in those cases, that Aix-en-Provence, by judgment of 23 the Court rule that Community law does January 1989 relates to the criminal not apply to a situation such as that of Mr proceedings commenced before the French Bouchoucha because of its 'purely internal' courts against a French national, Marc nature — that is not the case here. Bouchoucha, on the basis of the national provisions which penalize the unlawful practice of medicine, on the ground that he has practised osteopathy in Nice since 1981 although not qualified as a doctor of medicine. Mr Bouchoucha has both a State diploma as a masseur-kinesitherapist issued 3. Does that mean that Community law, in France and a diploma in osteopathy and more particularly the provisions of the issued on 1 October 1979 by the European Treaty concerning freedom of estab School of Osteopathy, Maidstone, Great lishment, entitles a person in circumstances Britain. In so far as it is by virtue of a such as those of Mr Bouchoucha to practise diploma awarded in another Member State osteopathy professionally and therefore that he practises osteopathy professionally in precludes the application of national legis France, Mr Bouchoucha considered that the lation which prohibits him from practising provisions of the EEC Treaty on freedom of in that capacity? I do not think so. It seems establishment precluded his being prohibited to me that the previous decisions of this from practising osteopathy in France. That Court, in particular the judgment in Case defence submission was what prompted the 221/85, 3clearly support a negative answer. national court to seek a preliminary ruling.
2. Before going any further, I should point 4. Let us first consider the essential features out that the situation on which the Court is of the legal context of Mr Bouchoucha's now called on to give a ruling cannot, I situation. There are no Community rules on think, be classified as 'purely internal' in the the practice of osteopathy. Under French sense which I have attributed to that legislation, its practice is regulated, so that it expression in my Opinion delivered today in 1 — Respectively Cases C-54/88, C-91/88 and C-14/89, [1990] the cases of MHO , Prandina and Goti and ECR I-3537, at p. I-3543. 2 — Case 115/78 [1979] ECR 399. * Original language: French. 3 — Case 221/85 Commission vBelgium [1987] ECR 719.
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may be practised only by doctors of 'provided that such equality of treatment is medicine, as is apparent from Article L 372 respected, each Member State is, in the of the Code de la santé publique and from absence of Community rules in this area, Article 2 of a Ministerial Order of 6 free to lay down rules for its own territory January 1962. In France, therefore, one governing the activities of laboratories cannot be an osteopath without being a providing clinical biology services'. 4
doctor.
The Court also pointed out that Article 52 was intended 5. In Case 221/85 Commission v Belgium, cited earlier, the Court examined, in the light of the requirements of freedom of establishment, a national legal provision 'to ensure that all nationals of Member which displayed marked similarities with the States who establish themselves in another one just described. The issue was whether, Member State ... for the purpose of by adopting a royal decree which precluded pursuing activities there as self-employed reimbursement by the social security auth persons receive the same treatment as orities for clinical biology services carried nationals of that State and it prohibits, as a out by laboratories operated by a legal restriction on freedom of establishment, any person governed by private law not all of discrimination on grounds of nationality'. 5 whose members, partners or directors were natural persons authorized to carry out medical analyses, that is to say doctors or pharmacists, the Kingdom of Belgium had The Court then stated that the Belgian law failed to fulfil its obligations under Article did not 52 of the EEC Treaty.
'prevent doctors or pharmacists who are nationals of other Member States from establishing themselves in Belgium and 6. In giving judgment, the Court stated first operating there a laboratory to carry out that clinical analyses qualifying for reimbur sement under the social security system'; 6
'freedom of establishment includes the right it thus held that the legislation 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' '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
4 — Case 221/85, paragraph 9. and that it was clear from Article 52 and its 5 — Case 221/85, paragraph 10. context that 6 — Case 221/85, paragraph 11.
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for discriminatory purposes or that it view in any way. As far as access to those produces discriminatory effects', professions is concerned, it provides that 'the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States'. In the absence of any coor and concluded that Belgium had not failed dination regarding the practice of oste to fulfil its obligations. opathy, Article 57(3) prompts the conclusion that the restrictions resulting from the legislation of a Member State which restricts the professional practice of
7. At first sight it seems to me that, in the osteopathy to doctors and consequently same way, in the absence of Community prohibits its practice by people who, rules concerning the practice of osteopathy, although not doctors, are qualified to each Member State is free to regulate the practise in other Member States, must be matter within its own territory and to decide accepted. Provided that equal treatment is that it should be restricted to doctors, guaranteed for access to the profession of provided of course that Community doctor — which, as we have seen, is the nationals are treated in the same way as case — and that the prohibition on the nationals of the host State as regards access practice of osteopathy applies without to that activity. Such treatment is ensured distinction to non-doctors from the country for the practice of osteopathy in France by in question and those from other Member the combined effect of Articles L 356 and States, there is no infringement of the L 356-2 of the Public Health Code. By requirements of freedom of establishment. virtue of those articles, which were adopted
7 in compliance with Directives 75/362/EEC and 75/363/EEC 8 of 16 June 1975, the French law enables any Community national qualified as a doctor in another Member 9. On an intellectual level, of course, the State to establish himself in France and, if possibility cannot be ruled out that a he wishes, to practise osteopathy there. I Member State may commit an abuse by arti consider therefore that that law fulfils the ficially linking the practice of medicine with requirements of the principle laid down in an activity alien to it. But it is clear that in Article 52 with respect to an activity not an area such as the protection of human regulated at Community level. health a very circumspect approach must be taken in determining what does and what does not fall to be classified as a medical
activity. In the absence of Community coor dination, it is in my view a matter for the 8. There is nothing in Article 57 of the Member States alone to say which of the Treaty, the third paragraph of which relates activities that come within the medical specifically to the medical and allied and sphere in the broad sense are to be regarded pharmaceutical professions, to change that as medical activities strictu sensu and which may be practised separately from the activity 6 — Case 221/85, paragraph II. of a doctor. In that respect, the Court's 7 — Council Directive 75/362/EEC concerning the mutual 9 recognition of diplomas, certificates and other evidence of statement in its judgment in Case 266/87 formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment with respect to the free movement of goods and freedom to provide services (OJ 1975 L 167, p. 1). seems to me to apply equally here.
In the 8 — Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1975 L 167, 9 — Case 266/87 The Queen v Royal Pharmaceutical Society p. 14). [1989] ECR 1295
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absence of Community rules, it is for the an activity which is incontestably alien to it. Member States The circumstances of this case concern an activity, osteopathy, which cannot be regarded as alien to the field of medicine 'to decide on the degree to which they wish and it therefore seems to me that the Court to protect human health and life and cannot even contemplate the possibility of how that degree of protection is to be any abuse. 10 achieved'. 11. I thus consider that the provisions of the Treaty on freedom of establishment do A Member State's decision that the practice not, in the absence of Community rules on of osteopathy falls within the scope of the the professional practice of osteopathy, practice of medicine seems to me to be a prevent a Member State from restricting the matter of deciding on the degree to which it pursuit of that activity to doctors, provided wishes to protect health and does not that all Community nationals are treated in therefore go beyond its powers under the same way as nationals of that State as Community law. regards access to the practice of medicine and that the prohibition whereby non-doctors may not practise osteopathy 10. The question of possible abuse would applies without distinction to the nationals arise only in the case of the manifestly arti of that State and those of the other Member ficial inclusion within the medical sphere of States.
12. I therefore suggest that the Court rule as follows:
'The EEC Treaty, and in particular the provisions thereof on freedom of es tablishment, does not, in the absence of Community rules on the practice of osteopathy, preclude a Member State from restricting the pursuit of that activity exclusively to doctors, provided that all Community nationals are treated in the same way as nationals of that State as regards access to the practice of medicine and that the prohibition whereby non-doctors may not practise osteopathy applies without distinction to the nationals of that State and those of the other Member States.'
10 — Paragraph 21.
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