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Action brought on 23 December 2005 by Commission of the European Communities against the Federal Republic of Germany

(Case C-456/05)

(2006/C 86/17)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 23 December 2005 by Commission of the European Communities, represented by Hans Støvlbæk and Sabine Grünheid, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

Pleas in law and main arguments

Under the German transitional rule concerning admission to practise the profession of psychotherapist independently of need, a psychotherapist is only authorised to practise in a place of his choice without there being a need for him if he has in the past carried out, under a statutory sickness insurance scheme, previous activities which are worthy of protection. According to the Commission that rule infringes the right of establishment enshrined in Article 43 of the EC Treaty in that only activities under a German statutory sickness insurance scheme are taken into account in examining previous activities which are worthy of protection and the issue of whether the therapeutic care given to insured persons in other Member States is of equal value or is to be regarded as being similar is not examined.

The provisions of the EC Treaty regarding the right of establishment are applicable in this case. The fact that the rule in dispute is part of German Social Security Law does not preclude that. Although Member States are entitled to develop freely their social security systems and also to settle the issue of the conditions under which psychotherapists can take part in the care provided under health insurance schemes, those rules should be in conformity with Community law provisions and, in particular, with the fundamental freedoms guaranteed by the EC Treaty. This German transitional rule does not meet that requirement, as it lends itself to deterring persons from other Member States who wish to establish themselves and who have previously primarily treated insured persons in other Member States, from moving their practices to Germany.

This German rule does not fulfil the justifying conditions which were established by the Court with respect to national measures which impede the right of establishment guaranteed by the Treaty. On the one hand it causes indirect discrimination as its nature is such that it tends to affect psychotherapists from other Member States more than German psychotherapists. Whereas German psychotherapists in the territory of the country have, namely, as a rule, also begun practising under a German statutory sickness insurance scheme, psychotherapists from other Member States have carried out no corresponding previous activities in Germany. On the other hand the restriction which the transitional rule places on those applicants who have carried out previous activities in Germany during the reference period is disproportionate: the purpose of the rule, which is to limit the number of psychotherapists who are authorised to practise independently of need, is not jeopardised if comparable activities or activities of equal value, which the migrants have carried out in other Member States, are acknowledged as previous activities which are worthy of protection. On those grounds, this case concerns a restriction of the right of establishment which is not to be regarded as justified.

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