Opinion of the Advocate General — ECLI:EU:C:2004:777
Date: 2004-12-07
Language of the case: Greek
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Procedure: Action for failure to fulfil obligations - successful
Origin: Greece

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Restrictions – National legislation prohibiting a qualified optician from operating more than one optician’s shop – Not permitted – Justification – None (Art. 43 EC) 2. Freedom of movement for persons – Freedom of establishment – Restrictions – National legislation limiting the possibility for a natural person of opening an optician’s shop – Not permitted – Justification – None (Arts 43 EC and 48 EC) 1. By enacting and maintaining in force a national law which does not permit a qualified optician as a natural person to operate more than one optician’s shop, a Member State fails to fulfil its obligations under Article 43 EC. Such a restriction on the freedom of establishment of natural persons cannot be justified by the objective of protecting public health, in so far as it goes beyond what is required in order to achieve that objective. (see paras 35-36, 38, operative part 1) 2. By enacting and maintaining in force a national law which makes the possibility for a natural person of opening an optician’s shop subject to the following conditions - authorisation for the establishment and operation of the optician’s shop must have been granted to a recognised optician who is a natural person, the person holding the authorisation to operate the shop must hold at least 50% of the company’s share capital and must participate at least to that extent in the profits and losses of the company, and the company must be in the form of a collective or limited partnership, and - the optician in question may participate at most in one other company owning an optician’s shop, subject to the condition that the authorisation for the establishment and operation of that shop is in the name of another authorised optician. a Member State fails to fulfil its obligations under Article 43EC and 48 EC. Such a restriction on the freedom of establishment of natural persons cannot be justified by the objective of protecting public health where it goes beyond what is required in order to achieve that objective. (see paras 35-36, 38, operative part 2)