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3. According to Article 2 of Directive exercise of the right of establishment and 92/51, which is the sole article of the freedom to provide services in respect Chapter II, entitled 'Scope': of the activities of doctors.

5. To this end, Article 2 provides: 'This Directive shall apply to any national of a Member State wishing to pursue a regulated profession in a host Member State in a self-employed capacity or as an employed person. 'Each Member State shall recognise the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 23 and which are listed in Article 3, by giving such qualifications, as far as the right to take up This Directive shall apply to neither pro- and pursue the activities of a doctor is fessions which are the subject of a specific concerned, the same effect in its territory as Directive establishing arrangements for the those which the Member State itself mutual recognition of diplomas by Member awards'. States, nor activities covered by a Directive listed in Annex A.

Austrian law and German law ...'

6. In Austria, by virtue of Paragraph 1(1) of the Law on t r a i n i n g (BGBl. No 378/1996), training for activities regu- lated in particular by the Law on doctors of 4. According to the third recital in the 1984 (now the Law on doctors, BGBl. preamble to Council Directive 93/16/EEC No 169/1998) is the exclusive function of of 5 April 1993 to facilitate the free the institutions designated for that purpose movement of doctors and the mutual by the federal laws. recognition of their diplomas, certificates and other evidence of formal qualifi- cations, 3 its aim is to facilitate the effective

11. In Germany, the profession of Heil- praktiker is regulated by the Heilprakti- kergesetz (Law on lay health practitioners, hereinafter the 'HPrG') of 17 February 1939 (RGBl. I, p. 251), as amended by 8. According to the Explanatory Notes to the Law of 2 March 1974. the law (150 BlgNR 20. GP, 24), the legislature intended, by means of the provi- sion in question, to counteract the activities of institutions (from Germany in particu- lar) which become established in Austria and intensively advertise 'Heilpraktiker' [lay health practitioner] training in that country, as that activity is unlawful under 12. By virtue of Paragraph 1(1) of the Austrian law. The notes point out that the HPrG, any person not qualified as a doctor legislature was required to take urgent of medicine who wishes to practice as a action particularly for the purposes of Heilpraktiker is obliged to seek authori- consumer protection. sation. According to Paragraph 1(2) of the HPrG, the activity of Heilpraktiker is the professional or commercial activity of diagnosing, treating or alleviating human illness, pain or physical injury.

9. According to Paragraph 2(2) of the Law on doctors, the exercise of the profession of doctor encompasses all activities based on medico-scientific knowledge practised directly on human beings or indirectly for 13. Pursuant to the relevant provisions of human beings, particularly the diagnosis the text implementing the HPrG (imple- and treatment of illness or physical or menting decision of 18 February 1939, psychological ailments. RGBl. I, p. 259), authorisation to exercise the profession of Heilpraktiker will be granted to the person making such request unless one of the restrictions referred to therein applies. In particular, authorisation will be refused where that person has not reached the age of 25, where he is unable to 10. Paragraph 3(1) and (4) of the Law on provide proof of having successfully com- doctors provides that any person other than pleted primary education, or where a test of

II — Facts and procedure in the main proceedings 17. Mr Gräbner had no further contact with Deutsche Paracelsus Schulen. He did not exercise his right to withdraw his 14. Deutsche Paracelsus Schulen für Natur- application within the prescribed time-limit heilverfahren GmbH (hereinafter 'Deutsche of one week and he never gave notice in Paracelsus Schulen') is a German company writing to terminate the commitments into which has for about 20 years offered which he had entered. training courses for the profession of Heil- praktiker. It is also established in Austria, where it has been providing courses for some 10 years. Finding persons to enrol on courses offered is achieved, inter alia, by placing advertisements in newspapers. 18. Before the Austrian courts, Deutsche Paracelsus Schulen sought payment of ATS 90 390 on the basis of the contract concluded with Mr Gräbner for training as a Heilpraktiker. It contended that it ought 15. On the basis of such an advertisement, to be possible to advertise training for Mr Gräbner, an Austrian national resident professions which were not permitted to be in Austria, contacted Deutsche Paracelsus exercised in Austria and that, despite the Schulen in January 1996. Information was Law on training, training as a lay health subsequently sent to him, together with a practitioner ought to be authorised in that copy of the application form. This form Member State. In particular, it maintained contains applications for admission to two that any other interpretation of that law levels of training (I and II) as a Heilprak- would infringe Community law, particu- tiker. Information is provided on the con- larly the right to freedom to provide tent of the training given at each level, services. together with information on a video training programme which is also offered. In particular, this form contains the follow- ing warning: 'We draw your attention to the fact that the profession of Heilpraktiker may not be practised in Austria... The official examination for qualification as a 19. Mr Gräbner contended inter alia before Heilpraktiker must be taken in Germany'. the Austrian courts that the contract in

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procuring such training or advertising regulate the exercise of that activity within therefor even if such training concerns its territory, without discriminating 5 only certain areas of medical practice?' between its own nationals and those of the other Member States'. 6

26. In the operative part of the judgment, IV — Analysis the Court concluded that 'in the absence of harmonisation at Community level regard- ing 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 On the first question ancillary to medicine such as, in particular, osteopathy exclusively to persons holding the qualification of doctor of medicine'.

lation adopted for the purpose of protect- 31. Consequently, I consider that the ing public health and applying equally to abovementioned judgment in Bouchoucha all persons established or wishing to is a valid point of reference for resolving become established within a Member State the problem at issue. does not require justification. This does not, of course, prejudice the right of a claimant to broach the question of the justification for legislation in seeking to show that the legislation at issue constitutes convert discrimination because its real 32. However, the national court questions purpose is to make it impossible or whether Directive 92/51/EEC, which was extremely difficult for foreign nationals to adopted only after the judgment in Bou- become established. However, it is not choucha, or any other rule of Community clear how such an argument could succeed law, has not modified the legal position in in a case such as the present one where this area. nationals are also prohibited from exercis- ing the same activity.

36. Nevertheless, Deutsche Paracelsus Schulen contends that Community law does not recognise the concept of a 'pro- 40. Further, in interpreting practically hibited profession', but recognises only identical provisions in Council Directive regulated professions and non-regulated 89/48/EEC of 21 December 1988 on a professions. Given that in Austria the general system for the recognition of profession of Heilpraktiker is regulated, higher-education diplomas awarded on albeit by a regulation in the form of a completion of professional education and prohibition, that profession should be training of at least three years' duration, 10 regarded as a regulated profession within the Court has already held that '... where the meaning of Directive 92/51. the conditions for taking up or pursuing a professional activity are directly or indi- rectly governed by legal provisions, whether laws, regulations or administrative provisions, that activity constitutes a regu- lated profession'11.

37. I cannot accept that argument.

41. It follows from those definitions that a regulated profession is a profession which 38. The concept of 'regulated profession' is is permitted a priori but subject, for the defined in Article 1(e) of Directive 92/51 as purposes of accessing and exercising it, to 'the regulated professional activity or range conditions laid down by the authorities of of. activities which constitute this profession in a Member State'. 10 —OJ 1989 L 19, p. 16. 1 1 — C a s e C-234/97 Fernández de Bobadilla [1999] ECR 1-4773, paragraph 16. See also Case C-164/94 9 — Emphasis added. Aranitis [1996] ECR I-135, paragraph 18.

the Member States. A prohibited profession qualifications, from one Member State is therefore not a regulated profession towards the other. However, that a within the meaning of Directive 92/51. Member State should be obliged to permit an activity to be exercised within its territory despite the fact that the State concerned has deemed it necessary to prohibit that activity appears to me to be totally at odds with the notion of respect 42. Moreover, the conclusion which Deut- contained in the rules on mutual recogni- sche Paracelsus Schulen draws from the fact tion. that, as it contends, Directive 92/51 applies to the profession of Heilpraktiker and according to which a Heilpraktiker auth- orised to practise in one Member State must also be authorised to do so in the other Member States, appears to me to defeat the purpose of the Community rules 45. For the purposes of clarification, I on the mutual recognition of diplomas, would also add that were — hypotheti- certificates and other qualifications con- cally — the profession of Heilpraktiker in tained in Directive 92/51. Germany to be regarded as 'regulated' in Austria in the sense that, in the latter Member State, activities of this type come within the activities of the profession of doctor, Directive 92/51 would nevertheless still not be applicable. 43. The purpose of those rules is that a Member State should recognise qualifi- cations issued by another Member State as equivalent to the qualifications issued by itself. That is shown, for example, by the second recital of Directive 92/51 whereby 46. The mutual recognition of diplomas, '... any host Member State in which a certificates and other qualifications of doc- profession is regulated is required to take tors is governed by Council Directive account of qualifications acquired in 93/16/EEC of 5 April 1993 to facilitate another Member State and to determine the free movement of doctors and the whether those qualifications correspond to mutual recognition of their diplomas, cer- the qualifications which the Member State tificates and other qualifications. 12 concerned requires'. Accordingly, that matter falls outside the scope of application of Directive 92/51 by virtue of the second paragraph of Article 2, whereby Directive 92/51 'shall [not] apply to... professions which are the subject of a specific directive establishing arrangements 44. Thus, inherent in the Community rules for the mutual recognition of diplomas by on mutual recognition is the fact that Member States'. qualifications issued by Member States are respected, whilst requiring similar respect, in the form of recognition for equivalent 12 — OJ 1993 L 165, p. 1.

49. In the alternative, Deutsche Paracelsus Schulen nevertheless also contends that 52. On this point, the abovementioned 'supposing the circumstances underpinning judgment in Centros merely reiterated the the judgment in Bouchoucha still obtain Court's case-law established initially by the (namely, "the absence of harmonisation at judgments of 31 March 1993 in Kraus, 14 Community level regarding activities which 30 November 1995 in Gebhard, 15 and fall solely within the scope of the practice 4 July 2000 in Haitn. 16 Those judgments of medicine"), it must at least be conceded came after the judgment in Bouchoucha. that the free movement of services cannot be hindered or rendered impossible by Member States quite simply by reserving to doctors certain activities which, in another Member State, may be carried out lawfully by a person who is not a doctor'. 53. Further, those four conditions were restated in the judgment of 1 February 2001 in Mac Quen and Others, 17 concern- ing national legislation reserving certain optical examinations for ophthalmologists 50. More specifically, referring to the judg- ment of 9 March 1999 in Centros, 13 14 — Case C-19/92 [1993] ECR I-1663, paragraph 32. 15 — Case C-55/94 [1995] ECR I-4165, paragraph 37. 16 — Case C-424/97 [2000] ECR I-5123, paragraph 57. 13 — Case C-212/97 [1999] ECR I-1459. 17 — Case C-108/96 [2001] ECR I-837.

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56. The Treaty provides that freedom of establishment shall be exercised 'under the

The second paragraph of Article 52 of the Treaty provides that freedom of establish- 18 — Paragraphs 24 to 26.

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conditions laid down for its own nationals Member State and, if such reasoning were by the law of the country where such to be followed through to its conclusion, establishment is effected'. Moreover, only the legislation which was the most according to Article 47(3) EC, in the case liberal would be compatible with the of the medical and allied and pharmaceuti- Treaty. However, Article 47(3) EC cer- cal professions, the progressive abolition of tainly does not envisage that type of auto- restrictions is to be dependent upon coor- matic harmonisation based on the lowest dination of the conditions for their exercise common denominator. in the various Member States.

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in my opinion, is transposable in its entirety to asses internal eye pressure, determine the to the problem at issue: field of vision or analyse the condition of the retina, may be regarded as an appropri- ate means by which to ensure attainment of a high level of health protection'. 20

'Next, with regard to the question whether there are overriding reasons based on the general interest which may justify the restriction on freedom of establishment resulting from the prohibition under chal- 61. That is also necessarily the case where a lenge, it must be remembered that the Member State reserves to doctors the protection of health is one of the reasons activities carried out in other Member which may, under Article 56(1) of the EC States by Heilpraktiker. T r e a t y ( n o w , after a m e n d m e n t , Article 46(1) EC), justify restrictions result- ing from special treatment for foreign nationals. Protection of public health is therefore, in principle, also capable of justifying national measures which apply indiscriminately, such as those in this case. 62. Finally, as regards the fourth condition, the Austrian rule in question also seems to me not to go beyond what is necessary for the attainment of the objective pursued, namely the protection of public health.

The mere fact that a Member State has 66. Irrespective of the fact that the alle- chosen a system of protection different gation made by Deutsche Paracelsus from that adopted by another Member Schulen is unsupported by any evidence or State cannot affect the appraisal as to the even substantive information, a measure need for and proportionality of the provi- cannot be regarded as proportionate to the sions adopted (Case C-67/98 Zenatti objective of health protection only if it [1999] ECR 1-7289, paragraph 34)'. 21 protects the population from danger or negative influences on health. A measure may also be proportionate if it makes a positive contribution to the protection of the population's health such as, for example, providing an additional health guarantee, like that in this case, as a result of the requirement that certain activities may not be carried out except by persons 64. Consequently, the fact that, according who have received more extensive training to Deutsche Paracelsus Schulen, Austrian than that received by a Heilpraktiker. law allows, on the basis merely of a declaration, several activities embracing health in the widest sense to be exercised (for example, physical or fitness training 'assistance' or 'life counselling' services), also does not prove that the Austrian rule is disproportionate. It has not been shown that those activities come within the pro- fession of doctor in Austria and would be, 67. For the same reason, I am of the in that sense, comparable to the activities opinion that one cannot require, as Deut- exercised by a Heilpraktiker. sche Paracelsus Schulen contends, that a Member State, in this case Austria, should take into account in its decisions favourable assessments made in another Member State, in this case Germany, as to Heil- praktiker activities. The question is not whether Heilpraktiker services deliver good or bad results, but whether it is dispropor- tionate for a Member State to require that, 65. Further, the argument of Deutsche in the interests of public health, the exercise Paracelsus Schulen that the disproportion- of certain activities should be reserved to ate nature is proven by the fact that a persons who have completed medical considerable number of patients from Aus- studies. trian provinces along the border with Germany have access to Heilpraktiker ser- vices in Bavaria, without that having any negative influence on health in those prov- inces compared to the rest of Austria, cannot be accepted.

69. I therefore take the view that the prohibition on the exercise of the profes- sion of Heilpraktiker is compatible with Article 43 EC on the freedom of establish- 72. Deutsche Paracelsus Schulen considers ment. Moreover, there is no reason why the that such a prohibition is contrary to analysis should differ with regard to Community law, whereas Mr Gräbner Article 49 EC on the freedom to provide and the Austrian and United Kingdom services. Governments contend the opposite. According to the Commission, a distinction must be drawn between freedom of estab- lishment and freedom to provide services. It contends that while the prohibition is compatible with Article 43 EC, it is not 70. Consequently, I propose that the reply compatible with Article 49 EC. to the national court should be that Articles 43 EC and 49 EC do not preclude a Member State from reserving the exercise of an activity allied to medicine, such as that of a lay health practitioner ('Heilprak- tiker') within the meaning of the German 73. Having regard to the manner in which Law on lay health practitioners (RGBl. I this question has been framed by the 251/1939), to holders of a doctor's qualifi- national court, I consider it useful to draw cation. a distinction between the prohibition on Heilpraktiker training in Austria and the prohibition on advertising for such train- ing.

On the second question The prohibition on Heilpraktiker training in Austria

71. By its second question, the national court asks whether Community law per- mits a Member State to reserve training for professions regulated by legal provisions in 74. According to Paragraph 1 of the Aus- the field of health to the institutions trian Law on training, 'training for the

77. Moreover, as the present case is con- cerned with vocational training or edu- cation, reference should be made to 75. It follows from the wording of that Article 149(1) EC and 150(1) EC, which article that the prohibition on Heilprak- provide respectively that 'the Community tiker training is a general prohibition in shall contribute to the development of Austria and that it must therefore be quality education by encouraging cooper- regarded as applying equally both to train- ation between Member States and, if ing provided by an institute or body necessary, by supporting and supplement- situated in a Member State other than ing their action, while fully respecting the Austria wishing to become established in responsibility of the Member States for the Austria and to training provided by a body content of teaching and the organisation of seated in another Member State wishing to the education system 22...'' and that 'the offer a service in Austria for the purpose of Community shall implement a vocational providing such training. It would therefore training policy which shall support and appear useful, as the Commission proposes, supplement the action of the Member to analyse the question referred by the States, while fully respecting the responsi- national court from the perspective of both bility of the Member States for the content the freedom of establishment and the free- and organisation of vocational training 23 '. dom to provide services.

78. In each article, paragraph 4 adds, 76. As regards freedom of establishment, it respectively, that '... the Council shall is worth repeating that it follows from adopt incentive measures, excluding any Article 43 EC that such freedom '... shall harmonisation of the laws and regulations include the right to take up and pursue of the Member States' 24 and that 'the activities as self-employed persons... under Council... shall adopt measures to con- the conditions laid down for its own tribute to the achievement of the objectives nationals by the law of the country where such establishment is effected...', and that 22 — Emphasis added. pursuant to Article 46(1) EC a Member 23 — Emphasis added. State is obliged to justify its legislation only 24 — Emphasis added.

81. Such would be the case if Austria were obliged to permit within its territory estab- lishments from another Member State pro- viding Heilpraktiker training. It would as a result become very difficult for Austria to prohibit its own nationals from setting up 84. I agree with Deutsche Paracelsus establishments to provide similar training. Schulen that a prohibition on Heilpraktiker In any event, the power which Austria training cannot be regarded as automati- retains by virtue of the abovementioned cally justified merely by the fact that the provisions to define freely the content and exercise of the profession of Heilpraktiker organisation of education provided within is prohibited. It should in effect be estab- its territory would thus be jeopardised. lished on the basis of the Court's case-law whether the prohibition on training is itself justified by imperative requirements in the 25 — Emphasis added. general interest.

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85. Nevertheless, it appears to me that that ition, such as that on the exercise of the is the situation in the present case. In effect, profession of Heilpraktiker, is valid, the I support the Commission's position that Member State cannot be deprived of the 'having regard not only to preventive health possibility of imposing that prohibition in a considerations, but also to the concern for coherent and credible manner. legislative coherence towards the consumer and the population as a whole, 26 the prohibition on the disputed training centres within Austrian territory seems justified'.

26 — Emphasis added. 27 — Emphasis added.

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the consumer in advance that it is not to the freedom to provide services, are possible to exercise the corresponding pro- fulfilled in respect of the prohibition on fession in Austria, does not appear to be a establishments situated outside Austria necessary measure, either in terms of public from providing Heilpraktiker training in health or consumer protection: such a Austria in the form of the provision of a practice infringes the principle of propor- service. tionality and consequently may not be regarded as justified'.

96. In its second question, the national 93. Nevertheless, in my opinion, the four court also asks whether Articles 43 EC and conditions, which apply in equal measure 49 EC preclude a prohibition, such as that

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provided for by Austrian law, on advertis- Austrian Government's explanation ing for Heilpraktiker training. appears to me to be convincing. Paragraph 1(2) 28 of the Law clearly pro- hibits advertising for the activity which it prohibits in Paragraph 1(1). However, it seems to me totally out of the question that the Austrian legislature could have intended to prohibit Heilpraktiker training 97. First, the scope of the prohibition on provided abroad. advertising for Heilpraktiker training should be examined.

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create any confusion in the minds of the Articles 43 EC and 49 EC do not preclude population with regard to the prohibition national rules which reserve training, pro- on the exercise of the profession of Heil- vided in the Member State's territory, to praktiker in Austria. professions regulated by a legal provision adopted in the field of health, to the institutions designated for that purpose and which prohibit other persons or insti- tutions from offering or procuring such 104. However, in the interests of con- training and advertising therefor, even if sumers, the Member State would, in my that training relates only to certain opinion, be right to require that the adver- branches of medical activity. On the other tising specify that the profession of Heil- hand, Article 49 EC does preclude a praktiker cannot be exercised in its terri- Member State from prohibiting advertising tory. for such training provided in another Member State, if the advertising in question informs the public of the prohibition on the exercise of the profession corresponding to the training in the territory of the Member 105. Consequently, I propose that the reply State in which it is prohibited. to the second question should be that

V — Conclusion

106. In the light of the above, I propose that the Court reply to the national court as follows:

— Articles 43 EC and 49 EC do not preclude a Member State from reserving the exercise of an activity allied to medicine, such as that of a lay health practitioner ('Heilpraktiker') within the meaning of the German Law on lay health practitioners (RGBl. I, 251/1939), to holders of a doctor's qualifi- cation.