Keywords

Summary



Keywords

Freedom of movement for persons – Freedom of establishment – Workers – Recognition of diplomas and other evidence of formal qualifications – National legislation excluding partial access to a profession regulated in the host Member State – Restriction – Justification – Objectives of protection of public health and consumers – Taking account of the extent of the differences between the fields of activity

(Art. 49 TFEU; European Parliament and Council Directive 2005/36, Arts 4(2) and 14(1))

Summary

Article 49 TFEU must be interpreted as precluding national legislation which excludes partial access to the profession of physiotherapist, regulated in the host Member State, by a national of that State who obtained, in another Member State, a qualification such as that of medical masseur-hydrotherapist, authorising him to carry out, in that second Member State, part of the activities coming under the profession of physiotherapist, when the differences between the fields of activity are so great that in reality the applicant should follow a full programme of education and training in order to pursue the profession of physiotherapist.

Such legislation is liable to hinder the exercise of the freedom of movement or render it less attractive and cannot be justified on grounds of overriding reasons of public interest. In that regard, firstly, even though the profession of physiotherapist and, accordingly, that of any type of masseur, do not fall within the sector of medical professions proper but within the paramedical sector, that sector, covering a wide range of different activities, cannot by definition avoid the system of mutual recognition of regulated professions as established by European Union law. Secondly, the recipient of the services provided by a medical masseur-hydrotherapist de facto enjoys the particular vigilance required as regards the protection of health. Accordingly, exclusion from even partial access to the profession of physiotherapist goes beyond not only what is necessary to achieve the objective of consumer protection but also what is required as regards protection of health, where, in the Member State of origin and the host Member State, the degree of similarity between the two professions is such that they may be regarded as ‘comparable’ and, accordingly, ‘the same profession’ within the meaning of Article 4(2) of Directive 2005/36 on the recognition of professional qualifications. In such cases, any shortcomings in the applicant’s education or training in relation to that required in the host Member State may be effectively made up for through the application of the compensation measures provided for in Article 14(1) of Directive 2005/36, thereby ensuring full integration of the party concerned into the professional system in the host Member State.

However, in cases which are not covered by Directive 2005/36 because the differences between the fields of activity are so great that in reality the applicant should follow a full programme of education and training in order to pursue, in another Member State, the activities for which he is qualified, such a requirement, viewed objectively, is a factor which is liable to discourage the party concerned from pursuing those activities in the host Member State.

(see paras 28-33, 35, operative part)