C-152/94
ECLI:EU:C:1995:310
- Súd
- Súdny dvor Európskej únie
- IČS
- 61994CC0152
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR ELMER — CASE C-152/94
OPINION OF ADVOCATE GENERAL ELMER delivered on 5 October 1995 *
1. The Rechtbank van Eerste Aanleg (Court laid down in Article 4 of the Law. The of First Instance), Ghent (Belgium), has in defendant explained during the proceedings this case referred to the Court for a prelimi- that he treated the teeth of horses, in partic- nary ruling a question concerning the scope ular by filing them down when they of Article 52 of the Treaty on freedom of acquired sharp points and edges through nat- establishment in relation to the issue of who ural abrasion. In this way, it was possible to may perform dental operations on horses. prevent cuts to the tongue and jaw, as well as digestive problems. H e does not administer any anaesthetic or other medication to the animals treated.
2. Article 4 of the Belgian Law of 22 August 1991 on the practice of veterinary medicine (hereinafter 'the Law') 1provides that veteri- nary medicine may be practised only by those who have qualified as veterinary sur- geons. Article 3(1)(6) of the Law provides that surgical and dental operations on ani- mals come within the scope of the term Vet- 4. The defendant stated that the activity erinary medicine'. which he performs can be freely exercised in the countries bordering on Belgium. In this connection, he provided a list of persons from, inter alia, the Netherlands, France and Germany engaged in the same activity, and added that 'indeed, I take the view that if a trade or profession can be exercised some- where in the European Community, it should also be possible to do so in Belgium'. 3. Geert R. J. S. Van Buynder, a Belgian The Openbaar Ministerie (Public Prosecu- national, was charged with having per- tor's Department) does not deny the fact formed, in Belgium, surgical and dental oper- that the other persons mentioned by the ations on animals without satisfying the defendant perform dental operations on requirement of being a veterinary surgeon as horses in Belgium under similar conditions. The defendant is unable to demonstrate that they are not veterinary surgeons; the Open- * Original language: Danish. baar Ministerie has not demonstrated that 1 — Belgisch Staatsblad of 15 October 1991, p. 22981. they are.
I - 3982
VAN BUYNDER
5. By judgment of 2 June 1994, the Recht- 8. I find no reason to accept the defendant's bank van Eerste Aanleg, Ghent, referred the submission that the case should be declared following question to the Court for a pre- inadmissible. The cooperation procedure liminary ruling: under Article 177 of the Treaty means that it is a matter for the national court, and not the Court of Justice, to decide on the propriety of an objection that a question in a reference for a preliminary ruling is irrelevant on the ground that it is based on a misinterpretation of national law. 2 'Does the freedom of establishment set out in Article 52 of the EEC Treaty guarantee the right of any person, even if not a veteri- nary surgeon, to perform dental operations on horses without the use of medication or anaesthetic?' 9. It follows from the Court's consistent case-law that the Treaty provisions on the freedom of establishment cannot be applied to activities which are confined in all respects within a single Member State, such as, for instance, the situation of nationals of a Mem- ber State who are resident in that Member 6. The defendant principally argues that the State and engage within its territory in a self- Court should declare the case inadmissible employed activity in respect of which they on the ground that the proceedings before cannot rely on any previous training the national court are vitiated by formal acquired in another Member State. 3 defects and that he did not perform dental operations on horses within the meaning of Article 3(1)(6) of the Law, but simply attended to the maintenance of horses' teeth. In the alternative, he submits that the Court's reply to the preliminary question 10. The defendant in the main proceedings is should be that Article 52 of the Treaty on a Belgian national and is resident in Belgium. freedom of establishment entitles anyone, The case relates to his exercise in Belgium of whether or not a veterinary surgeon, to file a self-employed activity connected with the down horses' teeth. treatment of horses. He does not have any veterinary qualifications from any Member State. The case thus involves a purely inter- nal situation in a Member State, to which, according to the Court's settled case-law, Article 52 of the Treaty does not apply.
7. The Commission, the Belgian Govern- ment and the United Kingdom argue that the 2 — See, for instance, the judgment in Case C-347/89 Eurim- case relates to a purely internal situation to Pbarm [1991] ECR I-1747, paragraphs 14 to 17. which the Treaty rules on freedom of estab- 3 — See, most recently, the judgment in Joined Cases C-29/94 to C-35/94 Aubertin and Others [1995] ECR I-301, paragraphs lishment do not apply. 9 and 10.
I - 3983
OPINION OF MR ELMER — CASE C-152/94
Opinion
11. I accordingly propose that the Court reply as follows to the question submitted to it by the Rechtbank van Eerste Aanleg, Ghent, by judgment of 2 June 1994:
Article 52 of the Treaty does not apply to a situation which is purely internal to a Member State, such as that of nationals of a Member State who are resident in that Member State and there engage in a self-employed activity in respect of which they cannot rely on any previous training acquired in another Member State.
I - 3984