C-108/96

1. Grandvision Belgium SA (hereinafter 'Grandvision') is a limited company under Belgian law with its head office in Brussels. It was set up in 1990 by the Netherlands company VE Holdings BV under the name Vision Express Belgium. It is in fact con- trolled by Vision Express UK Ltd, a com- 3. Following a criminal investigation, pro- pany established under English law, and is ceedings against Mr MacQuen, a United part of a group of companies which States national, and Mr Pouton, a British markets optical products and services. national, who had in turns been deputy directors of Grandvision, Mr Antoun, an optician of British nationality, and Ms Godts, a secretary of Belgian national- ity, and Grandvision itself, as the party civilly liable, were instituted before the 2. In 1991 the l'union professionnelle belge Tribunal de premiere instance de Bruxelles, des médecins spécialistes en ophtalmologie sitting in criminal matters. et chirugie oculaire (Belgian Association of Ophthalmologists and Eye Surgeons) (here- inafter the 'UPBMO') lodged a complaint and an application for damages against Grandvision on the ground, in particular, that it was practising medicine unlawfully. The company had circulated advertising material offering its customers eyesight examinations which would serve, among 4. The applicable national law consists of other things, to reveal any intraocular the Royal Decree of 30 October 1964 on hypertension (computer tonometry), to the optical profession,2 as subsequently ascertain the condition of the retina (reti- amended, and Royal Decree No 78 of noscopy), to gauge the field of vision or to check the condition of the cornea, the conjunctiva, the eyelids and tear ducts 2 — Royal Decree establishing the conditions governing the (biomicroscopy), in the same way as Vision exercise of the profession of optician and spectacle-maker in skilled trade undertakings, small and medium-sized busi- nesses and small-scale industries, Moniteur Belge of 24 December 1964, amended by the Royal Decrees of 16 September 1966, 14 January 1975, 3 October 1978 and 1 — Original language: French. 2 March 1988, Moniteur Belge of 17 March 1988.

(a) the offering to the public, sale, main- tenance and repair of optical articles — designed to correct and/or compensate 8. The second subparagraph of Article 2(1) vision; of Royal Decree No 78 provides: 'The unlawful practice of medicine shall consist in the habitual performance, by a person who does not satisfy all of the requisite conditions under the first subparagraph of the present paragraph, of any act involving, (a)a the trial, adaptation, sale and mainte- or stated to involve, in regard to a human nance of artificial eyes; being, an examination of that person's state of health, detection of disease and deficien- cies, establishment of a diagnosis, introduc- tion or administration of treatment for a pathological state, whether physical or mental, real or imaginary, or vaccination'. (b) the making-up of prescriptions issued by ophthalmologists for the purpose of correcting vision.' 9. The Cour de cassation ruled in that judgment that, 'while opticians who are not 3 — Royal Decree No 78 on exercise of medical, nursing and paramedical professions and on the medical committees dealing with the prevention of the unlawful practice of medicine. Moniteur Belge of 14 November 1967. 4 — Judgment Cass, b., 28 June 1989, Pas. b. 1989, I-1182.

I-841

OPINION OF MR MISCHO — CASE C-108/96

'1. Is a prohibition, arising from the inter- 1. Preliminary observations pretation or the application of a provi- sion of national law, restraining opti- cians in other Member States from offering within a Member State, for the correction of purely optical defects, 11. The UPBMO contends that the main services consisting of an objective eye- proceedings relate to a purely internal

I-842

MAC QUEN AND OTHERS

situation which, in the absence of any provisions of the Treaty, to which reference factor connecting it with Community law, may be made. does not fall within the scope of that law.

I-843

OPINION OF MR MISCHO — CASE C-108/96

under the freedom to provide services, 2. Does the national legislation in question which is covered by Article 59 of the constitute a barrier to freedom of establish- Treaty. ment?

20. It should also be borne in mind that the provisions of the chapter on services are in (a) The arguments of the parties any event subordinate to those of the chapter on the right of establishment. 6

21. Although it is settled case-law that 23. Grandvision submits that the Belgian 'within the framework of the task given to legislation, if applied according to the it by Article 177 of the Treaty, the Court of interpretation given by the Belgian Cour Justice has no jurisdiction to decide the de cassation, prevents opticians from other application of the Treaty to a given case', Member States from carrying out in Bel- nevertheless 'the need to reach a useful gium, within a regular practice, the objec- interpretation of Community law enables it tive eyesight examinations which they may to extract from the facts of the main lawfully carry out in their State of origin. dispute the details necessary for the under- standing of the questions submitted and the formulation of an appropriate reply'. 7

26. However, it is clear from the Gebhard liability for professional negligence. Those, judgment, cited above, and from those in however, are acts which, according to the Bosman, Centros and Kraus8 that national above-mentioned judgment of the Cour de rules which may hinder or render less cassation, they are prohibited from carry- attractive the exercise of the guaranteed ing out. fundamental freedoms cannot be justified under Community law unless they meet four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be appropriate for ensuring that their objective is attained; 28. UPBMO, in contrast, takes the view and they must not go beyond what is that the principles laid down in the Bou- necessary to attain that objective. choncha 9case should be applied by ana- logy. In that case the Court held that where there is no harmonisation of the national laws relating to the practice of medicine and medical activities, the State may restrict a paramedical activity to persons qualified as doctors of medicine. Under this principle, it falls to Member States to 27. In the present case, the rules in ques- decide which actions pertaining to human tion, although not discriminatory, cannot sight are reserved to ophthalmologists. This be justified by considerations of public solution reflects the general principle that health protection. Grandvision argues that Member States are free to regulate activities in Belgium opticians receive adequate train- on their territory if there is no harmonisa- ing, they refrain from making diagnoses, tion at Community level. This freedom is particularly diagnoses stating that there is limited solely by the obligation not to no pathological defect, and they have the discriminate against nationals of other necessary financial resources to acquire the Member States. UPBMO argues that those best equipment. There is no evidence that if principles have not been overturned by the opticians were to carry out the examina- judgments cited by Grandvision, in parti- tions in question there would be a risk to cular the Kraus judgment, since the latter public health. This conclusion is all the case is not of general relevance and does more warranted by the fact that the Belgian not apply to the field of public health and authorities disagree on whether opticians the practice of medicine. are entitled to carry out examinations of this kind. In July 1990 the national sickness and invalidity insurance institute sent out a circular requiring opticians to provide the best optical and optometricai service, including optical measuring (objective and subjective optometry) and analysis of the 29. Grandvision objects, by reference to the visual function, with the help of specific judgment in De Castro Freitas and Escal- instruments, failing which they could incur lier, 10 that UPBMO has misinterpreted

Bouchoucha in so far as, even if there is no doctors, since there is no Community harmonisation of national laws, a Member definition of medical activities. State may regulate the practice of a profes- sion on its territory only if it respects the fundamental freedoms guaranteed by the Treaty. A State must now exercise its jurisdiction within the limits set by Kraus, by virtue of which Bouchoucha has become inoperative. 32. The Commission considers, however, that the Belgian legislation, by insisting that only specialist doctors may carry out oph- thalmological examinations involving a diagnosis, may constitute a restriction for opticians from other Member States in 30. By way of alternative argument, which they are entitled to perform such UPBMO submits that the Belgian legisla- examinations. Accordingly, although the tion does comply with the conditions Belgian rules are justified on the ground referred to by the other party. The Belgian of public health protection, they will be legislation, it contends, is justified by a compatible with Community law only if general interest in the protection of health, they fulfil the four conditions laid down in which is a fundamental objective of the the Gebhard judgment, which in the Com- Treaty. By entrusting the eyesight tests in mission's view are satisfied in this case. The question to specialist doctors, the Belgian Commission again refers to the judgment in State succeeds in guaranteeing a high level Reisebüro Broede, pointing out in particu- of public health protection. The rules are lar that the fact that certain States impose proportionate and appropriate for achiev- less stringent rules does not automatically ing the intended purpose. The objective of mean that the stricter rules applied in preserving public health cannot be achieved another State will be disproportionate. Like by less restrictive means, such as entrusting the UPBMO, the Commission therefore such examinations to persons having only a concludes that the rules in question are less extensive training. not disqualified by Article 52 of the Treaty.

34. The fact that in Boucboucba, the objectives and whether it went beyond person concerned was a national of the what was necessary to achieve them. Member State in which he was seeking to practise the profession of osteopath, relying on a diploma obtained in another Member State, does not detract from the Court's finding of principle in its judgment, to the effect that: 37. From the freedom which each Member State retains to regulate the practice of the profession concerned, the Court drew the direct conclusion that 'Article 52 of the EEC Treaty does not preclude a Member State from restricting an activity ancillary to medicine such as, in particular, osteo- '... in so far as there is no Community pathy exclusively to persons holding the definition of medical acts, the definition of qualification of doctor of medicine'. 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 38. I proposed that the Court should, in activity within its territory, without discri- this case, primarily follow the same line of minating between its own nationals and reasoning. those of the other Member States'.

labour costs, social security costs or the tax 43. Finally, we note that it has not been system'. 14 argued that Grandvision and its non-Bel- gian employees have experienced difficul- ties in working as opticians in Belgium. As the Court ruled in the Grafis judgment in connection with the free movement of workers, in order to constitute hindrances to such freedom conditions which apply 40. Similarly, in the same way as a prohi- without distinction must affect access of bition against opening shops on Sundays workers to the labour market. and public holidays, 'the legislation in question is applicable to all traders exercis- ing their activity on national territory ... its purpose is not to regulate the conditions concerning the establishment of the under- takings concerned; ... any restrictive effects which it might have on freedom of estab- lishment are too uncertain and indirect for the obligation laid down to be regarded as 44. Where such access has been gained being capable of hindering that freedom'. 15 without difficulty, a self-employed person must, like a salaried worker, comply with the laws in the host country which govern the practice of the profession, even if those laws impose burdens or restrictions which do not exist in the country of origin of the undertaking or of the self-employed 41. While the practice of the profession of worker. This applies not only as regards optician in Belgium is perhaps slightly 'less direct or indirect taxation, the minimum attractive' 16 than in the United Kingdom, wage to be paid to employees, maximum Grandvision is not to any greater extent working time, holidays or the prohibition 'hindered' 17 by the restriction in question of Sunday trading, but also as regards the than are Belgian opticians. services which may be offered to clients.

49. Obviously, it is not for us to assess the 46. The Kraus and Gebbard judgments case-law of the Belgian Cour de cassation relied upon by Grandvision stipulate that or to rule on the differences in interpreta- national measures which may hinder or tion which may exist in Belgium as to the render less attractive the exercise of the exact scope of the domestic legislation fundamental freedoms guaranteed by the demarcating the respective fields of activity Treaty can be justified under Community of doctors and opticians. law if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding require- ments in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must 50. In the context of the allocation of not go beyond what is necessary in order to jurisdiction between national courts and attain it. 19 the Community judicature, the Court of Justice is required only to answer the question put by the national court in order to enable it to resolve the dispute before it in conformity with Community law.

47. In the present case, neither the parties to the dispute nor the Commission deny that the rules in question apply without distinction to all opticians who practise on Belgian territory, regardless of any consid- 51. The Court must therefore accept as a eration of nationality or residence, that is settled fact that in Belgium there is a to say, they apply in a non-discriminatory binding legal rule of the kind described by manner. the national court in its first question.

57. Article 152(5) EC states: 'Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical 54. It is also important to take account of care'. Article 152 EC, which deals with public health, although at the time when proceed- ings were brought against Grandvision it was the earlier version of that provision, Article 129 of the EC Treaty, which was in force. 58. It is evident from these provisions that the main responsibility in the field of public health lies with the Member States.

55. According to Article 152(1) EC, a 'high 59. Well before the Treaty of Amsterdam level of human health protection shall be came into force, the Court had itself stated ensured in the definition and implementa- on numerous occasions that in the area of tion of all Community policies and activ- ities' and 'Community action ... shall com- plement national policies'. 20 — Emphasis added.

I-850

MAC QUEN AND OTHERS

medicinal products, phytopharmaceutical does not mean that the latter's rules are products and pesticides, the Member States disproportionate and hence incompatible remain free to decide the degree of protec- with Community law (Case C-384/93 tion they will secure for human life and Alpine Investments v Minister van Finan- health. 21 ciën [1995] ECR I-1141, paragraph 51)'. In that case, the issue was whether debt recovery could be reserved to the legal profession.

60. The same certainly applies with regard to medical treatment. The Court cannot, on the one hand, affirm that Member States alone can decide the level at which they 63. I should also mention in passing that in intend to protect the health of their citizens the Peralta judgment the Court used the and, on the other hand, refuse them that same argument in connection with a sup- right once it appears that a number of other posed infringement of the principle of non- Member States (should this prove to be the discrimination. case) are satisfied with a lower level of protection.

68. It argues that by giving ophthalmolo- III — The second question gists a monopoly over the possession and use of the equipment, the Belgian legisla- tion hinders the importation of such equip- ment.

1. The arguments of the parties

69. That legislation, it argues, run counter to Article 30 of the Treaty, which prohibits all commercial rules in Member States which may obstruct directly or indirectly, 66. In its second question, the national actually or potentially, trade within the court also refers to 'opticians established in Community. other Member States'. In view of the facts of the case, and in order to enable the national court to resolve the legal problem facing it in conformity with Community law, the question should be understood as meaning that the national court is asking the Court to decide whether the ban on an 70. In support of its argument, Grandvi- optician who originates in one Member sion cites the judgment in the Dassonville 22 State and is established in another carrying case, and also the judgments in the Delat- out in the second Member State eyesight tre 23 and Monteil and Samanni 24 cases, examinations of a medical nature relying concerning the monopoly enjoyed by phar- on specialised equipment constitutes a quantitative restriction on the import of such equipment or a measure of equivalent 22 — Case 8/74 Dassonville [1974] ECR 837. effect which is prohibited as between 23 — Case C-369/88 Delattre [1991] ECR I-1487. Member States by Article 30 of the Treaty. 24 — Case C-60/89 Monteil and Samanni [1991] ECR I-1547.

I - 853

OPINION OF MR MISCHO — CASE C-108/96

2. Assessment than indirectly through the restriction of freedom of establishment'.

78. In my view, this question should be answered along the lines proposed by the Commission.

82. There are no factors in the present case to indicate that the national rule which has been criticised, on the assumption that it produces restrictive effects on the free 79. From the judgment in Van Scbaik, cited movement of goods between Member by the Commission, and that in Schind- States, creates barriers other than those ler, 26 it follows that the import and export associated with restrictions on the freedom of goods for the sole purpose of carrying of establishment. out a 'service' activity, within the meaning of Article 60 of the EC Treaty (now Article 50 EC) cannot be regarded as being independent of the activity with which they are associated; thus they are outside the reach of the rules governing the free move- ment of goods. 83. Consequently, the reply to the second question in the preliminary reference should be modelled on the reply to the first, and there is no need to examine the effects of the Belgian legislation on the free movement of goods in respect of the 80. This principle, which is derived from provisions relating to Article 30 et seq. of the provisions on the free supply of services the Treaty. in conjunction with those on the free movement of goods, remains fully valid in respect of freedom of establishment.

I therefore propose the following reply to 81. This principle was applied in the judg- this second question: ment in the Pfeiffer 27 case, in which it was held that a national rule will be contrary to Article 30 of the Treaty only 'if, and to the extent that, it restricted the free movement of goods between Member States other

(2) Article 30 of the EC Treaty (now, after amendment, Article 28 EC) should be interpreted as not precluding legislation such as that in issue in the main proceedings.

I-855