# C_2013325EN.01000301.xml

| 9.11.2013 | EN | Official Journal of the European Union | C 325/3 |
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9.11.2013

EN

Official Journal of the European Union

C 325/3

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Judgment of the Court (Fourth Chamber) of 12 September 2013 (request for a preliminary ruling from the Berufsgericht für Heilberufe bei dem Verwaltungsgericht Gießen — Germany) — Kostas Konstantinides

(Case C-475/11) (1)

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(Freedom to provide medical services - Service provider travelling to another Member State to provide the service - Applicability of the rules of professional conduct of the host Member State, in particular those relating to fees and advertising)

2013/C 325/04

Language of the case: German

Referring court

Referring court

Berufsgericht für Heilberufe bei dem Verwaltungsgericht Gießen

Parties to the main proceedings

Parties to the main proceedings

Defendant: Kostas Konstantinides

Defendant:

Re:

Re:

Request for a preliminary ruling — Berufsgericht für Heilberufe bei dem Verwaltungsgericht Gießen — Interpretation of Article 5(3) and the first sentence, point (a), of Article 6 of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22) — Freedom to provide medical services — Situation in which the service provider travels to another Member State in order to provide the service — Applicability of rules of professional conduct of the host Member State, in particular those relating to fees and advertising

Operative part of the judgment

Operative part of the judgment

| 1. | Article 5(3) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications must be interpreted as meaning that national rules such as, first, Paragraph 12(1) of the Code of professional conduct for doctors in Hesse, under which fees must be reasonable and, unless provided otherwise by law, calculated on the basis of the official Regulation on doctors’ fees, and, secondly, Paragraph 27(3) of that code, which prohibits doctors from engaging in unprofessional advertising, do not fall within its material scope. It is, however, for the referring court to ascertain, taking into account the indications given by the Court of Justice of the European Union, whether those rules constitute a restriction within the meaning of Article 56 TFEU, and, if so, whether they pursue an objective in the public interest, are appropriate to ensuring that it is attained, and do not go beyond what is necessary for attaining it. |
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1.

Article 5(3) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications must be interpreted as meaning that national rules such as, first, Paragraph 12(1) of the Code of professional conduct for doctors in Hesse, under which fees must be reasonable and, unless provided otherwise by law, calculated on the basis of the official Regulation on doctors’ fees, and, secondly, Paragraph 27(3) of that code, which prohibits doctors from engaging in unprofessional advertising, do not fall within its material scope. It is, however, for the referring court to ascertain, taking into account the indications given by the Court of Justice of the European Union, whether those rules constitute a restriction within the meaning of Article 56 TFEU, and, if so, whether they pursue an objective in the public interest, are appropriate to ensuring that it is attained, and do not go beyond what is necessary for attaining it.

| 2. | Article 6(a) of Directive 2005/36 must be interpreted as not laying down the rules of conduct or disciplinary procedures to which a service provider who travels to the territory of the host Member State to pursue his profession on a temporary and occasional basis may be subject, but as merely stating that Member States may provide either for automatic temporary registration with or for pro forma membership of a professional organisation or body, in order to facilitate the application of disciplinary provisions in accordance with Article 5(3) of that directive. |
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2.

Article 6(a) of Directive 2005/36 must be interpreted as not laying down the rules of conduct or disciplinary procedures to which a service provider who travels to the territory of the host Member State to pursue his profession on a temporary and occasional basis may be subject, but as merely stating that Member States may provide either for automatic temporary registration with or for pro forma membership of a professional organisation or body, in order to facilitate the application of disciplinary provisions in accordance with Article 5(3) of that directive.

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(1)  OJ C 355, 3.12.2011.

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