Opinion of the Advocate General — ECLI:EU:C:2017:715
Date: 2017-09-21
Language of the case: Romanian
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Judgment of the Court (Third Chamber) 1 March 2018 1. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Scope — Health care services — Not included –The retail supply and use of organic products, special purpose anti-parasitic products and veterinary medicinal products — Included (European Parliament and Council Directive 2006/123, Recital 22 and Art. 2(2)(f)) 2. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Scope — Primacy of provisions of other measures of EU law governing access to a services activity or exercise of such an activity — Distribution of veterinary medicinal products — Prevalence of the provisions of Directive 2001/82 — Precluded (European Parliament and Council Directives 2001/82 and 2006/123, Art. 3(1)) 3. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Requirements to be evaluated — National legislation limiting the right to retail, use and administer veterinary medicinal, special purpose anti-parasitic and organic products to veterinary practitioners — Justification — Protection of public health — Lawfulness (European Parliament and Council Directive 2006/123, Art. 15) 4. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Requirements to be evaluated — National legislation under which shares in establishments retailing veterinary medicinal products must be held by one or more veterinary practitioners — Justification — Effective monitoring of the operation of retail outlets selling veterinary medicinal products — Not permissible — Disproportionate (European Parliament and Council Directive 2006/123, Art. 15) 1. See the text of the decision. (see paras 39-41) 2. See the text of the decision. (see paras 43, 44) 3. Article 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market is to be interpreted as not precluding national legislation, such as that at issue in the main proceedings, under which veterinary practitioners have an exclusive right to retail and use organic products, special purpose anti-parasitic products and veterinary medicinal products. In the present case, it should be noted that national legislation such as that at issue in the main proceedings reserves access to activities entailing the retail supply and use of certain veterinary products to veterinary practitioners and imposes a requirement of the kind referred to in Article 15(2)(d) of Directive 2006/123. As a consequence, such a requirement must satisfy the three conditions laid down in Article 15(3) of that directive, that is, they must be non-discriminatory, necessary and proportionate to the attainment of an overriding requirement relating to the public interest. With regard to the second element of the third condition, namely that the requirement concerned should not go beyond what is necessary to attain the objective in question, it should be noted that the protection of public health ranks foremost among the assets or interests protected by the EU Treaty and that it is for the Member States to determine the degree of protection which it wishes to afford to public health and the way in which that degree of protection is to be achieved. As this may vary from one Member State to another, Member States must be allowed a measure of discretion (see, to that effect, judgment of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 51). Moreover, there is nothing in the file submitted to the Court to suggest that, by adopting the national legislation at issue in the main proceedings, the Member State concerned exceeded the discretion it enjoys in this field. As regards the third element of the third condition laid down in Article 15(3) of Directive 2006/123, namely that no less restrictive measures should be available that would enable the same objective to be attained, the Commission maintains that the objective of protecting public health could be attained just as effectively by a measure which allows the products in question to be sold by other duly qualified professionals, such as pharmacists or other persons having undergone advanced professional training in the pharmaceutical field. However, while such other professionals may in fact have in-depth knowledge as regards the properties of the various components of veterinary medicinal products, there is nothing to suggest that they have received special training appropriate to animal health. Therefore, it is not evident that the measure proposed by the Commission is liable to give the same result as that provided for by national legislation such as that at issue in the main proceedings. (see paras 53, 54, 64, 67-70, 73, operative part 1) 4. Article 15 of Directive 2006/123 is to be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which shares in establishments retailing veterinary medicinal products must be owned exclusively by one or more veterinary practitioners. Veterinary practitioners who are shareholders in an establishment that retails veterinary medicinal products are, unlike economic operators who are not veterinary practitioners, subject to rules of professional conduct designed to moderate the pursuit of profit, so that their interest connected with the making of a profit is tempered by the responsibility which they have in this area, given that any breach of the rules of law or professional conduct undermines not only the value of their investment but also their own professional existence (see, by analogy, judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 37). While, as is clear from the Court’s case-law cited in paragraph 82 above, a Member State may lawfully prevent economic operators who are not veterinary practitioners from being in a position to exert decisive influence over the operation of establishments retailing veterinary medicinal products, the objective referred to in that paragraph cannot justify a provision that totally precludes such operators from holding shares in such establishments, as it is perfectly plausible that veterinary practitioners will be able to monitor such establishments effectively even if they do not hold all the shares in those establishments, given that the fact that a limited number of those shares are held by persons who are not veterinary practitioners will not necessarily make such monitoring impossible. Accordingly, national legislation such as that at issue in the main proceedings goes beyond what is necessary to attain the objective pursued by the legislation. That view cannot be called into question by the case-law established by the judgment of 19 May 2009, Commission v Italy, (C‑531/06, EU:2009:315), in which the Court found to be compatible with freedom of establishment and free movement of capital national legislation which prevented not only non-pharmacists from holding, in companies or firms operating pharmacies, significant stakes giving them definite influence over their management but also investors from other Member States who are not pharmacists from acquiring, in those companies or firms, smaller stakes which do not confer such influence. Whilst, as is apparent from paragraph 62 above, the primary considerations to be taken into account in the field of medicinal products for human use may, in principle, be transposed to the field of trade in veterinary medicinal products, the discretion enjoyed by Member States in order to ensure that the provision of veterinary products is of good quality and that veterinary practitioners operating in establishments selling such products are independent is more restricted than the discretion conferred on Member States in certain other sectors more closely connected with the protection of human health and does not, therefore, extend to excluding persons who are not veterinary practitioners from holding any shares in such establishments. (see paras 84, 86-89, operative part 2)