Opinion of the Advocate General — ECLI:EU:C:2007:394
Date: 2007-06-28
Language of the case: German
Based on: Merger Treaty (1965)
Subject matter: Right of establishment;Anti-discrimination;Non-discrimination on grounds of nationality
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

Summary of the Judgment 1. Actions for failure to fulfil obligations – Subject-matter of the dispute (Art. 226 EC) 2. Freedom of movement for persons – Freedom of establishment – Restrictions – National legislation on the exercise of the health professions (Arts 12 EC and 43 EC) 1. An action for failure to fulfil obligations is admissible against a Member State in respect of transitional provisions which reserve the possibility of practising under that State’s sickness insurance schemes solely to psychotherapists who practised under those schemes in a region of that State during the reference period and refuse to grant that possibility to psychotherapists who practised during the same period outside that State under the sickness insurance schemes of another Member State, since the exclusion of the latter from the benefit of the transitional provisions is not limited in time but permanent in nature and, in particular, lasted beyond the expiry of the period laid down in the reasoned opinion. (see paras 17-20) 2. A Member State fails to fulfil its obligations under Article 43 EC by reserving transitional provisions or ‘established rights’, which permit psychotherapists to obtain authorisation or admission to practise independently of the applicable rules of the statutory sickness insurance scheme, solely to psychotherapists who have practised in a region of that Member State under national statutory sickness insurance schemes and by failing to take account of comparable or similar professional activity performed by psychotherapists in other Member States. The condition requiring practice as a psychotherapist in a region of the Member State concerned under its statutory sickness insurance scheme, even if applicable to all, makes entitlement to a right subject to a condition of residence in a region of that Member State, and thereby favours nationals of that Member State over nationals of other Member States, contrary to the principle of non-discrimination laid down in Article 12 EC. Such a restriction on the freedom of establishment of natural persons cannot be justified by the objective of protecting an established right, namely the retention of patients following several years of professional activity, since it goes beyond what is necessary to attain that objective. (see paras 56-57, 63, 65, 73, 76, operative part)