Case C‑475/11, Konstantinides

German disciplinary rules on medical professionals possibly incompatible with Article 56 TFEU
>> Dr Konstantinides, a Greek doctor, obtained a diploma of doctor of medicine in Athens (Greece) in 1981. In particular, from 1986 to 1990 he was head of the andrology department of the Athens University Hospital, and since 1990 has practised on his own account in a practice called the ‘Andrology Institute Athens’. He was a member of the association of doctors of Athens and of the Greek association of doctors, and was established in Athens.

Throughout the period from 2006 to 2010 Dr Konstantinides visited Germany for one or two days a month on average, in order to perform andrological surgical operations, within the territory for which the Association of Doctors of the Land of Hesse was competent, in the out-patient surgery department of the medical centre of the Elisabethenstift in Darmstadt (Germany, pictured). Dr Konstantinides’s activity was limited exclusively to performing highly specialised surgical operations, with the other services linked to those operations, such as arranging appointments and providing in-house post-operative care, being entrusted to the staff of that medical centre.
In August 2007 a patient was successfully operated on by Dr Konstantinides in an out-patient operation performed in that medical centre. Following a complaint by that patient disputing the amount of the bill sent to him by Dr Konstantinides, the Association of Doctors of the Land of Hesse carried out an investigation, which led to the bringing of disciplinary proceedings against Dr Konstantinides before the referring court, for infringement of the Regulation on doctors’ fees and breach of the prohibition of unprofessional advertising.
The Association of Doctors of the Land of Hesse considered that Paragraph 3(1) and (3) of the Hesse Law on health professions, which required Dr Konstantinides to observe the Code of professional conduct for doctors in Hesse adopted pursuant to Paragraphs 24 and 25 of that law, was a correct transposition of Directive 2005/36 on the recognition of professional qualifications, in particular Articles 5 and 6, and was consequently consistent with European Union law.
Dr Konstantinides submitted principally that, in accordance with the principle of freedom to provide services, he carried on his activity in Germany on a temporary and occasional basis, and was not therefore subject to the German rules of professional conduct. 
The Court first of all held that national rules such as those in Paragraphs 12(1) and 27(3) of the Code of professional conduct for doctors in Hesse did not fall within the material scope of Article 5(3) of Directive 2005/36.
The Court reiterated that in the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it was for the Court to provide the national court with an answer which would be of use to it and enabled it to determine the case before it. In that light, the Court might have to reformulate the questions referred to it (see, inter alia, Case C‑334/95 Krüger [1997]), and Case C‑243/09 Fuß [2010] ). 
To that end, the Court might extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the legislation and the principles of European Union law that required interpretation in view of the subject-matter of the dispute in the main proceedings (see inter alia, Case 83/78 Redmond [1978]; Case C‑56/01 Inizan [2003]).
Whether infringement of Article 56 TFEU
In this respect, the Court observed that in circumstances such as those at issue in the main proceedings,  the compatibility with European Union law of the provisions at issue in the main proceedings must be examined by reference not to Directive 2005/36 but to the principle of freedom to provide services in Article 56 TFEU.
According to settled case-law, Article 56 TFEU requires not only the elimination of all discrimination against providers of services on grounds of nationality or the fact that they are established in a Member State other than that where the services are to be provided, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (see, for a recent example, Case C‑577/10 Commission v Belgium [2012]).
In the present case, the Court observed that, in particular, the concept of restriction covered measures taken by a Member State which, although applicable without distinction, affected the freedom to provide services in other Member States (see, to that effect, inter alia, Case C‑565/08 Commission v Italy [2011], on which I wrote this post.).
The Court held that it was common ground in the main proceedings that the provisions at issue applied without distinction to all doctors providing services in the Land of Hesse. In addition, the Court recalled that rules of a Member State did not constitute a restriction within the meaning of the FEU Treaty solely by virtue of the fact that other Member States applied less strict, or economically more favourable, rules to providers of similar services established in their territory.  The existence of a restriction within the meaning of the Treaty could, according to the Court, not therefore be deduced from the mere fact that doctors established in Member States other than the Federal Republic of Germany had to submit, for calculating their fees for services provided in the territory of the Land of Hesse, to the rules applicable in that Land.
The Court however held that in the absence of any flexibility of the system at issue in the main proceedings, that being for the national court to assess, the application of such a system, which would be liable to have a deterrent effect on doctors from other Member States, would constitute a restriction within the meaning of the Treaty.
Whether justification
The Court reiterated that national measures which are liable to hinder the exercise of fundamental freedoms guaranteed by the Treaty or make it less attractive may be allowed only if they pursue a legitimate objective in the public interest, are appropriate to ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued (see, inter alia, Case C‑202/11 Las [2013]).
The Court stated that it was for the referring court to examine whether, on the assumption that their application in circumstances such as those described in the order for reference constituted a restriction of the freedom to provide services, the rules at issue in the main proceedings were based on an objective in the public interest. The Court reiterated that in general, the protection of the health and life of humans, as provided for by Article 36 TFEU, and the protection of consumers were among the objectives which might be regarded as overriding reasons in the public interest capable of justifying a restriction of the freedom to provide services (see, to that effect, inter alia, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006]  and Case C‑143/06 Ludwigs-Apotheke [2007]).
The Court concluded that it was for the referring court to ascertain whether the provisions at issue in the main proceedings constituted a restriction within the meaning of Article 56 TFEU, and, if so, whether they pursued an objective in the public interest, were appropriate to ensuring that it was attained, and did not go beyond what is necessary for attaining it.