Opinion of the Advocate General — ECLI:EU:C:2010:305
Date: 2010-06-02
Language of the case: French
Subject matter: Right of establishment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: France

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Restrictions – Restrictions of the holding of capital in companies (Arts 43 EC and 46 EC) 2. Freedom of movement for persons – Freedom of establishment – Restrictions – Restrictions of the holding of capital in companies (Art. 43 EC) 1. National provisions prohibiting a non-biologist from holding more than 25% of the shares, hence of the voting rights, in a Société d’exercise liberal à responsabilité limitée (SELARL) operating biomedical analysis laboratories restrict the opportunity for natural or legal persons who are not biologists and are established in other Member States to hold capital in such a company. Those provisions also discourage – or even prevent – the establishment in the Member State at issue, in the form of SELARLs, of economic operators established in other Member States in which they operate laboratories which do not meet the criteria laid down in those provisions with regard to investment in share capital. Those provisions thus have the effect of hindering and of rendering less attractive the exercise by those operators of their activities on the territory of that Member State through a permanent establishment, and impair their access to the market in biomedical analyses. However, the protection of public health is one of the reasons that can justify restrictions on the freedoms of movement guaranteed by the Treaty, such as the freedom of establishment. In that context, the aim of maintaining the quality of medical services may be covered by one of the exceptions provided for in Article 46 EC, in so far as it contributes to the attainment of a high level of health protection. Given the power afforded to the Member States to determine the level of protection that they wish to give to public health, Member States may require biomedical analyses to be carried out by biologists enjoying genuine professional independence. They may also take measures for eliminating or reducing a risk that that independence might be compromised, because that in turn would be liable to have an adverse effect on public health and the quality of medical services. A Member State may also, in the exercise of its discretion, take the view that non-biologists holding more than 25% of shares and voting rights in such a SELARL operating biomedical analysis laboratories might represent a risk to public health and, in particular, to the quality of medical services. It not having been established that any measure less restrictive of the freedom guaranteed by Article 43 EC than the prohibiting of a non-biologist from holding more than 25% of the shares and of the voting rights in a company would be sufficient to ensure as effectively the level of protection of public health sought, such national provisions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining it. Moreover, such provisions also appear proportionate to the objective pursued since, whilst ensuring that biologists retain independence in their decision-making, they allow SELARLs operating biomedical analysis laboratories to have a degree of access to external capital up to the limit of 25% of their capital. (see paras 46-47, 52-53, 66, 68, 79, 87-89) 2. A national provision prohibiting biologists from holding shares in more than two companies formed in order to operate jointly one or more biomedical analysis laboratories has the effect of hindering or rendering less attractive the exercise of their freedom of establishment and constitutes a restriction on freedom of establishment for the purposes of Article 43 EC. (see paras 98-100)