Case C-570/07: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain) lodged on 24 December 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios del Principado de Asturias, Federación Empresarial de Farmacéuticos Españoles and Plataforma para la Libre Apertura de Farmacias
Date: 2007-12-24
Institutions: Court of Justice
Subjects: EU national, Principality of Asturias, interpretation of the law, pharmacy, right of establishment

29.3.2008

EN

Official Journal of the European Union

C 79/13

— requiring patent lawyers lawfully established in another
Member State temporarily wishing to provide services
temporarily in Austria to instruct a locally registered
domestic lawyer or to appoint a person residing in
Austria as process agent.

— order Austria to pay the costs.

Pleas in law and main arguments

the public interest is limited to those interests that are not
already protected by provisions to which the service provider is
subject in his Member State of establishment.

The Commission is of the view that the restrictions in dispute
are not allowed as a derogation expressly provided for by the
Treaty or justified, in accordance with the case-law of the Court
of Justice, by overriding reasons relating to the public interest.
The requirements in question to which patent lawyers estab-
lished in other Member States are subject go beyond that which
is necessary to achieve the objectives of consumer protection
and the proper conduct of proceedings.

the Court of

According to consistent case-law of
Justice,
Article 49 EC requires not only the elimination of any kind of
discrimination on the grounds of nationality against a service
provider established in another Member State, but also the
removal of all restrictions — even if they apply uniformly to
domestic service providers and service providers who are
nationals of other Member States — which are liable to prohibit,
impede or render less attractive the activities of service providers
established in another Member State in which they legally
provide equivalent services.

According to the Commission, the Austrian legal provisions
regarding patent lawyers represent a restriction on the freedom
to provide services within the meaning of Article 49 EC, by
requiring patent lawyers lawfully established in another Member
State wishing to provide services temporarily in Austria to take
out professional
in the Austrian
liability insurance, to enrol
register, to submit to the disciplinary supervision of the Austrian
Patent Lawyers Association and, if they wish to represent clients,
to instruct a locally registered domestic lawyer.

Those requirements are liable to impede the temporary provi-
sion of services in Austria by a patent lawyer lawfully estab-
lished in another Member State, or at least to render the provi-
sion of such services less attractive. That is to say that compli-
ance with the legal provisions of both the Member State of
establishment and the Member State in which the service is
provided places an additional financial burden on the service
provider, since he has to familiarise himself with the provisions
applicable in the Member State in which the service is provided;
in addition, he is subject to two regulatory systems, without the
Member State in which the service is provided taking into
consideration the rules to which he is already subject in the
Member State of origin. Moreover, the rules in issue are also
likely to discourage consumers from enlisting the services of a
service provider established in another Member State, as this
generates additional costs that are not incurred if the service
provider is Austrian.

National provisions that prohibit, impede or render less attrac-
tive the exercise of the fundamental freedoms guaranteed by the
Treaty are compatible with the Treaty only if, first, they are justi-
fied by imperative requirements in the public interest, second,
they are applied without discrimination, third, they are suitable
for achieving the objective which they pursue, and, fourth, they
do not go beyond what is strictly necessary to attain that objec-
tive. The recognition of interests as imperative requirements in

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Asturias
lodged on
24 December 2007 — José Manuel Blanco Pérez and Maria
del Pilar Chao Gómez v Consejería de Salud y Servicios
Sanitarios
Federación
Empresarial de Farmacéuticos Españoles and Plataforma
para la Libre Apertura de Farmacias

de Asturias,

Principado

(Spain)

del

(Case C-570/07)

(2008/C 79/23)

Language of the case: Spanish

Referring court

Tribunal Superior de Justicia de Asturias

Parties to the main proceedings

Applicants: José Manuel Blanco Pérez and Maria del Pilar Chao
Gómez

Defendants: Consejería de Salud y Servicios Sanitarios del Princi-
pado de Asturias, Federación Empresarial de Farmacéuticos
Españoles and Plataforma para la Libre Apertura de Farmacias

Question referred

Should Articles 2, 3 and 4 of Decree 72/2001 dated 19 July of
the Principality of Asturias regulating pharmacies and pharma-
ceutical dispensaries, and Sections 4, 6 and 7 of the Annex
thereto, be considered to be in breach of Article 43 of the
EC Treaty?