Opinion of Mr Advocate General Elmer delivered on 5 October 1995. - Criminal proceedings v Geert Van Buynder. - Reference for a preliminary ruling: Rechtbank van eerste aanleg Gent - Belgium. - Freedom of establishment - Veterinary surgeons - Purely internal situation. - Case C-152/94.



European Court reports 1995 Page I-03981



Opinion of the Advocate-General

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1 The Rechtbank van Eerste Aanleg (Court of First Instance), Ghent (Belgium), has in this case referred to the Court for a preliminary ruling a question concerning the scope of Article 52 of the Treaty on freedom of establishment in relation to the issue of who may perform dental operations on horses.

2 Article 4 of the Belgian Law of 22 August 1991 on the practice of veterinary medicine (hereinafter `the Law') (1) provides that veterinary medicine may be practised only by those who have qualified as veterinary surgeons. Article 3(1)(6) of the Law provides that surgical and dental operations on animals come within the scope of the term `veterinary medicine'.

3 Geert R.J.S. Van Buynder, a Belgian national, was charged with having performed, in Belgium, surgical and dental operations on animals without satisfying the requirement of being a veterinary surgeon as laid down in Article 4 of the Law. The defendant explained during the proceedings that he treated the teeth of horses, in particular by filing them down when they acquired sharp points and edges through natural abrasion. In this way, it was possible to prevent cuts to the tongue and jaw, as well as digestive problems. He does not administer any anaesthetic or other medication to the animals treated.

4 The defendant stated that the activity which he performs can be freely exercised in the countries bordering on Belgium. In this connection, he provided a list of persons from, inter alia, the Netherlands, France and Germany engaged in the same activity, and added that `indeed, I take the view that if a trade or profession can be exercised somewhere in the European Community, it should also be possible to do so in Belgium'. The Openbaar Ministerie (Public Prosecutor's Department) does not deny the fact that the other persons mentioned by the defendant perform dental operations on horses in Belgium under similar conditions. The defendant is unable to demonstrate that they are not veterinary surgeons; the Openbaar Ministerie has not demonstrated that they are.

5 By judgment of 2 June 1994, the Rechtbank van Eerste Aanleg, Ghent, referred the following question to the Court for a preliminary ruling:

`Does the freedom of establishment set out in Article 52 of the EEC Treaty guarantee the right of any person, even if not a veterinary surgeon, to perform dental operations on horses without the use of medication or anaesthetic?'

6 The defendant principally argues that the Court should declare the case inadmissible on the ground that the proceedings before the national court are vitiated by formal defects and that he did not perform dental operations on horses within the meaning of Article 3(1)(6) of the Law, but simply attended to the maintenance of horses' teeth. In the alternative, he submits that the Court's reply to the preliminary question should be that Article 52 of the Treaty on freedom of establishment entitles anyone, whether or not a veterinary surgeon, to file down horses' teeth.

7 The Commission, the Belgian Government and the United Kingdom argue that the case relates to a purely internal situation to which the Treaty rules on freedom of establishment do not apply.

8 I find no reason to accept the defendant's submission that the case should be declared inadmissible. The cooperation procedure under Article 177 of the Treaty means that it is a matter for the national court, and not the Court of Justice, to decide on the propriety of an objection that a question in a reference for a preliminary ruling is irrelevant on the ground that it is based on a misinterpretation of national law. (2)

9 It follows from the Court's consistent case-law that the Treaty provisions on the freedom of establishment cannot be applied to activities which are confined in all respects within a single Member State, such as, for instance, the situation of nationals of a Member State who are resident in that Member State and engage within its territory in a self-employed activity in respect of which they cannot rely on any previous training acquired in another Member State. (3)

10 The defendant in the main proceedings is a Belgian national and is resident in Belgium. The case relates to his exercise in Belgium of a self-employed activity connected with the treatment of horses. He does not have any veterinary qualifications from any Member State. The case thus involves a purely internal situation in a Member State, to which, according to the Court's settled case-law, Article 52 of the Treaty does not apply.

Opinion

11 I accordingly propose that the Court reply as follows to the question submitted to it by the Rechtbank van Eerste Aanleg, Ghent, by judgment of 2 June 1994:

Article 52 of the Treaty does not apply to a situation which is purely internal to a Member State, such as that of nationals of a Member State who are resident in that Member State and there engage in a self-employed activity in respect of which they cannot rely on any previous training acquired in another Member State.

(1) - Belgisch Staatsblad of 15 October 1991, p. 22981.

(2) - See, for instance, the judgment in Case C-347/89 Eurim-Pharm [1991] ECR I-1747, paragraphs 14 to 17.

(3) - See, most recently, the judgment in Joined Cases C-29/94 to C-35/94 Aubertin and Others [1995] ECR I-301, paragraphs 9 and 10.