Opinion of the Advocate General — ECLI:EU:C:2017:421
Date: 2017-06-01
Language of the case: Maltese
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Malta

Summary — Judgment of the Court (Third Chamber), 21 September 2017 1. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Workers — Recognition of professional qualifications — Directive 2005/36 — Concept of ‘specific professional qualifications’ — Training which is specifically designed to prepare candidates to exercise a given profession (European Parliament and Council Directive 2005/36, Art. 3(1)(a), (b), (c) and (e)) 2. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Workers — Recognition of professional qualifications — Directive 2005/36 — General system for the recognition of evidence of training — Conditions for recognition — Concept of ‘same profession’ — Profession which is identical, analogous or simply equivalent in the Member State of origin and the host Member State (Art. 49 TFEU; European Parliament and Council Directive 2005/36, Art. 13(1), first para.) 3. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Workers — Recognition of professional qualifications — Directive 2005/36 — National legislation which stipulates that the activities of a dental technologist must be pursued in collaboration with a dental practitioner — Requirement applicable to clinical dental technologists who acquired their professional qualifications in another Member State and who seek to pursue their profession in the host Member State —Whether admissible under Article 49 TFEU and the directive (Art. 49 TFEU; European Parliament and Council Directive 2005/36, Art. 4(1) and 13(1), first para.) 1. See the text of the decision. (see para. 35) 2. Under the first subparagraph of Article 13(1) of that directive, if access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State must permit applicants to access and pursue that profession, under the same conditions as apply to its nationals, if they possess an attestation of competence or evidence of formal qualifications referred to in Article 11 of that directive, required by another Member State in order to gain access to and pursue that profession on its territory. The expression ‘that profession’ in the first subparagraph of Article 13(1) of Directive 2005/36 must be construed as covering professions which, in the home Member State and the host Member State, are identical or analogous or, in some cases, simply equivalent in terms of the activities they cover (see, to that effect, judgment of 19 January 2006, Colegio de Ingenieros de Caminos, Canales y Puertos, C‑330/03, EU:C:2006:45, paragraph 20). (see paras 39, 40) 3. Article 49 TFEU, and Article 4(1) and the first subparagraph of Article 13(1) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013, must be interpreted to the effect that they do not preclude legislation of a Member State, such as that at issue in the main proceedings, which stipulates that the activities of a dental technologist must be pursued in collaboration with a dental practitioner, inasmuch as that requirement is applicable, in accordance with that legislation, to clinical dental technologists who obtained their professional qualifications in another Member State and who wish to pursue their profession in the first Member State. The Court has consistently held that, in order to assess whether a Member State has observed the principle of proportionality in the area of public health, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the TFEU and that it is for the Member States to determine the degree of protection which they wish to afford to public health and the way in which that degree of protection is to be achieved. Since that level may vary from one Member State to another, Member States must be allowed a measure of discretion in that area (see, to that effect, judgment of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraph 30 and the case-law cited). Bearing in mind the risk to the patient’s health inherent in all the activities referred to in paragraph 57 above, the importance of the objective of protecting public health and the discretion, recalled in paragraph 60 of the judgment, enjoyed by the Member States in implementing that objective, it must be concluded that, as the Advocate General observed in points 26 to 30 of his Opinion, the requirement for the compulsory intermediation of a dental practitioner is appropriate in order to attain that objective and does not go beyond what is necessary for that purpose. (see paras 60, 62, 63, operative part)