Case C-456/05: Action brought on  23 December 2005  by Commission of the European Communities against the Federal Republic of Germany
Date: 2006-04-08
Institutions: Court of Justice
Subjects: EU law - national law, European Commission, Germany, access to a profession, action for failure to fulfil an obligation, equal treatment, psychology, right of establishment, therapeutics

C 86/10

EN

Official Journal of the European Union

8.4.2006

As long as it has not been withdrawn or declared invalid by the
authorities of the Member State which issued it, an E 101 certificate
issued under Article 11(1)(a) of Regulation (EEC) No 574/72 of the
Council of 21 March 1972 laying down the procedure for imple-
menting Regulation No 1408/71,
in the version amended and
updated by Council Regulation (EEC) No 2001/83 of 2 June 1983,
as amended by Council Regulation (EEC) No 2195/91 of 25 June
1991, binds the competent institution and the courts of the Member
State in which the workers are posted. Consequently, a court of the
host Member State of such workers is not entitled to scrutinise the
validity of an E 101 certificate as regards the certification of the
matters on the basis of which such a certificate was issued, in particu-
lar the existence of a direct relationship, within the meaning of Article
14(1)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June
1971 on the application of social security schemes to employed
persons, self-employed persons and members of their families moving
within the Community, in the version amended and updated by Regu-
lation No 2001/83, as amended by Regulation No 2195/91, read
in conjunction with paragraph 1 of Decision No 128 of the Admin-
istrative Commission on Social Security for Migrant Workers of
17 October 1985 concerning the application of Articles 14(1)(a) and
14b(1) of Regulation No 1408/71, between the undertaking estab-
lished in a Member State and the workers which it has posted to
another Member State, during the period of their posting.

(1) OJ C 82 of 02.04.2005.

Action brought on 23 December 2005 by Commission of
the European Communities against the Federal Republic of
Germany

(Case C-456/05)

(2006/C 86/17)

(Language of the case: German)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 23 December 2005 by Commission of the European
Communities, represented by Hans Støvlbæk and Sabine Grün-
heid, acting as Agents, with an address for service in Luxem-
bourg.

The applicant claims that the Court should:

1. declare that the Federal Republic of Germany has failed to
fulfil its obligations under Article 43 of the EC Treaty by
applying the transitional rules and rules to protect estab-

lished rights, on the basis of which psychotherapists obtain
admission or a permit to practise the profession indepen-
dently of the applicable rules governing admission to prac-
tise the profession, only to those psychotherapists who have
carried out their activities under German statutory sickness
insurance schemes and by not
the
comparable or similar professional activities of psychothera-
pists in other Member States.

taking into account

2. order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Under the German transitional rule concerning admission to
practise the profession of psychotherapist
independently of
need, a psychotherapist is only authorised to practise in a place
of his choice without there being a need for him if he has in
the past carried out, under a statutory sickness insurance
scheme, previous activities which are worthy of protection.
According to the Commission that rule infringes the right of
establishment enshrined in Article 43 of the EC Treaty in that
only activities under a German statutory sickness insurance
scheme are taken into account in examining previous activities
which are worthy of protection and the issue of whether the
therapeutic care given to insured persons in other Member
States is of equal value or is to be regarded as being similar is
not examined.

The provisions of the EC Treaty regarding the right of establish-
ment are applicable in this case. The fact that the rule in
dispute is part of German Social Security Law does not
preclude that. Although Member States are entitled to develop
freely their social security systems and also to settle the issue of
the conditions under which psychotherapists can take part in
the care provided under health insurance schemes, those rules
should be in conformity with Community law provisions and,
in particular, with the fundamental freedoms guaranteed by the
EC Treaty. This German transitional rule does not meet that
requirement, as it lends itself to deterring persons from other
Member States who wish to establish themselves and who have
previously primarily treated insured persons in other Member
States, from moving their practices to Germany.

This German rule does not fulfil the justifying conditions which
were established by the Court with respect to national measures
which impede the right of establishment guaranteed by the
Treaty. On the one hand it causes indirect discrimination as its
nature is such that it tends to affect psychotherapists from
other Member States more than German psychotherapists.
the
Whereas German psychotherapists in the territory of
country have, namely, as a rule, also begun practising under a
German statutory sickness insurance scheme, psychotherapists
from other Member States have carried out no corresponding

8.4.2006

EN

Official Journal of the European Union

C 86/11

previous activities in Germany. On the other hand the restric-
tion which the transitional rule places on those applicants who
have carried out previous activities in Germany during the
reference period is disproportionate: the purpose of the rule,
which is to limit the number of psychotherapists who are
authorised to practise independently of need, is not jeopardised
if comparable activities or activities of equal value, which the
migrants have carried out in other Member States, are acknowl-
edged as previous activities which are worthy of protection. On
those grounds, this case concerns a restriction of the right of
establishment which is not to be regarded as justified.

exceeded the powers it derives from that provision. In so far as
there exists scientific uncertainty as to the health and environ-
mental consequences of DecaBDE use, the Commission has
committed a manifest error in assessing the scientific evidence
and failed to respect the precautionary principle. By extending
the exemption to all the polymeric applications of DecaBDE,
without exception, it has breached the principle of proportion-
ality. The Commission has failed to provide a proper statement
of reasons for its decision to exempt DecaBDE.

(1) Official Journal L 271 , 15/10/2005 P. 0048 - 0050
(2) Official Journal L 037 , 13/02/2003 P. 0019 - 0023

Action brought on 11 January 2006 by European Parlia-
ment against the Commission of the European Commu-
nities

(Case C-14/06)

(2006/C 86/18)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of Justice of the European
Communities on 11 January 2006 (lodged by fax on 6 January
2006) by the European Parliament, represented by Mr K.
Bradley, Mr A. Neergaard and Mrs I. Klavina, acting as Agents,
with an address for service in Luxembourg.

The applicant claims that the Court should:

1. annul Commission Decision 2005/717/EC of 13 October
2005 amending for the purpose of adapting to the technical
progress the Annex to Directive 2002/95/EC of the Euro-
pean Parliament and of Council on the restriction of the use
of certain hazardous substances in electrical and electronic
equipment;

2. order Commission of the European Communities to pay the

costs.

Pleas in law and main arguments

ether

(‘DecaBDE’)

Commission Decision 2005/717/EC of 13 October 2005 (1)
exempts decabromodiphenyl
from the
marketing prohibition imposed by Article 4(1) of European
Parliament and Council Directive 2002/95 (2) on the restriction
of the use of certain hazardous substances in electrical and elec-
tronic equipment. The applicant submits that the Commission
has failed to respect the conditions laid down for such exemp-
that Directive and has therefore
tions by Article 5(1) of

Reference for a preliminary ruling from the Finanzgericht
München (Germany) By order of that court of 19 January
2006 in Juers Pharma Import-Export GmbH v Oberfinanz-
direktion Nürnberg

(Case C-40/06)

(2006/C 86/19)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of
the Finzgericht München
(Germany) of 19 January 2006, received at the Court Registry
on 25 January 2006, for a preliminary ruling in the proceed-
ings between Jules Pharma Import-Export GmbH and Oberfi-
nanzdirektion Nürnberg on the following question:

Is the Combined Nomenclature (‘the CN’) as amended by
Annex to Commission Regulation (EC) No 1789/2003 (OJ
2003 L 281, p.1) of 11 September 2003 (1) amending Annex I
to Council Regulation (EEC) No 2658/87 on the tariff and
statistical Nomenclature and on the Common Customs Tariff to
be interpreted as meaning that Melatonin capsules, put up as
dietary supplements in the absence of authorisation under the
provisions on medical products, are to be classified under
heading 3004?

(1) OJ L 281, p.1