Hartlauer Handelsgesellschaft mbH v Wiener Landesregierung and Oberösterreichische Landesregierung.
Date: 2009-03-10
24. In that regard, it must be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in or der to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 38, and Case C‑476/01 Kapper  [2004] ECR I‑5205, paragraph 24).
25. The Court can refuse to give a preliminary ruling on a question submitted by a national court only where, in particular, it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical (Case C‑308/06 Intertanko and Others  [2008] ECR I‑0000, paragraph 32 and the case-law cited).
29. First, it should be recalled that it is clear, both from the case-law of the Court and from Article 152(5) EC, that Community law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions intended to govern the organisation and delivery of health services and medical care. In exercising that power, however, the Member States must comply with Community law, in particular the provisions of the Treaty on the freedoms of movement, including freedom of establishment. Those provisions prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of those freedoms in the healthcare sector (see, to that effect, Case 238/82 Duphar and Others  [1984] ECR 523, paragraph 16; Case C‑372/04 Watts  [2006] ECR I‑4325, paragraphs 92 and 146; and Case C‑141/07 Commission  v Germany  [2008] ECR I‑0000, paragraphs 22 and 23).
30. In accordance with settled case-law, when assessing whether that obligation has been complied with, account must be taken of the fact that a Member State has the power to determine the level of protection which it wishes to afford to public health and the way in which that level is to be achieved. Since the level of protection may vary from one Member State to the other, Member States must be allowed discretion ( Commission  v Germany , paragraph 51 and the case-law cited).
33. According to settled case-law, Article 43 EC precludes any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Community nationals of the freedom of establishment that is guaranteed by the Treaty (see, inter alia, Case C‑299/02 Commission  v Netherlands  [2004] ECR I‑9761, paragraph 15, and Case C‑140/03 Commission  v Greece  [2005] ECR I‑3177, paragraph 27).
34. A national rule under which the establishment of an undertaking from another Member State is subject to the issue of a prior authorisation constitutes a restriction within the meaning of Article 43 EC, since it is capable of hindering the exercise by that undertaking of freedom of establishment by preventing it from freely carrying on its activities through a fixed place of business.
35. First, that undertaking may have to bear the additional administrative and financial costs involved in any grant of such an authorisation. Second, the national legislation reserves the pursuit of self-employed activity to certain economic operators who satisfy predetermined requirements, compliance with which is a condition for the issue of that authorisation (see, in relation to the freedom to provide services, Case C‑76/90 Säger  [1991] ECR I‑4221, paragraph 14, and Case C‑168/04 Commission  v Austria  [2006] ECR I‑9041, paragraph 40).
36. Moreover, the Court has already held that national legislation under which the pursuit of an activity is subject to a condition linked to the economic or social need for that activity constitutes a restriction in that it tends to limit the number of providers of services (see, to that effect, Case C‑63/99 Gloszczuk  [2001] ECR I‑6369, paragraph 59, and Case C‑255/04 Commission  v France  [2006] ECR I‑5251, paragraph 29).
38. That legislation deters or even prevents undertakings from other Member States from pursuing their activities on the territory of the Republic of Austria through a health institution designed as a fixed place of business. In the present case, its application had the effect of depriving Hartlauer altogether of access to the market in dental care in Austria.
39. Consequently, the legislation constitutes a restriction of freedom of establishment within the meaning of Article 43 EC, notwithstanding the alleged absence of discrimination on grounds of the nationality of the persons concerned.
44. On this point, it must be recalled that a restriction of freedom of establishment, applicable without discrimination on grounds of nationality, may be justified by overriding reasons in the general interest, provided that it is appropriate for ensuring attainment of the objective pursued and does not go beyond what is necessary for attaining that objective ( Commission  v Greece , paragraph 34 and the case-law cited).
46. Moreover, the protection of public health is one of the overriding reasons in the general interest which can, under Article 46(1) EC, justify restrictions of freedom of establishment.
47. It follows from the case-law that two objectives may, more precisely, be covered by that derogation in so far as they contribute to achieving a high level of protection of health, namely the objective of maintaining a balanced high-quality medical or hospital service open to all and the objective of preventing the risk of serious harm to the financial balance of the social security system (see, to that effect, Watts , paragraphs 103 and 104 and the case-law cited).
48. As regards the first of those objectives, Article 46 EC allows the Member States, in particular, to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for the public health, and even the survival, of the population (see, to that effect, Case C‑385/99 Müller-Fauré and van Riet  [2003] ECR I‑4509, paragraph 67, and Watts , paragraph 105).
49. As regards the second of those objectives, it should be noted that the planning of medical services, of which the requirement that authorisation is needed for the setting up of a new health institution is a corollary, is intended to control costs and to prevent, as far as possible, any wastage of financial, technical and human resources, since the medical care sector generates considerable costs and must satisfy increasing needs, while the financial resources which may be made available for healthcare are not unlimited, whatever the mode of funding applied (see, with regard to hospital care in the context of the freedom to provide services, Müller-Fauré and van Riet , paragraph 80, and Watts , paragraph 109).
51. It cannot be excluded from the outset that, as the Court has already ruled with respect to hospitals (Case C‑157/99 Smits and Peerbooms  [2001] ECR I‑5473, paragraphs 76 to 80, and Watts , paragraphs 108 to 110), establishments providing outpatient care such as doctors’ surgeries and outpatient clinics may also be the subject of planning.
52. Planning which requires prior authorisation for setting up new providers of services may prove indispensable for filling in possible gaps in access to outpatient care and for avoiding the duplication of structures, so as to ensure medical care which is adapted to the needs of the population, covers the entire territory and takes account of geographically isolated or otherwise disadvantaged regions.
53. From that point of view, it is permissible for a Member State to organise medical care in such a way that it gives priority to a system of benefits in kind, so that all patients have easy access, throughout national territory, to the services of contractual practitioners.
55. First, it must be recalled that national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, to that effect, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others  [2007] ECR I‑1891, paragraphs 53 and 58, and Case C‑500/06 Corporación Dermoestética  [2008] ECR I‑0000, paragraphs 39 and 40).
64. Second, it follows from settled case-law that a prior administrative authorisation scheme cannot render legitimate discretionary conduct on the part of the national authorities which is liable to negate the effectiveness of provisions of Community law, in particular those relating to a fundamental freedom such as that at issue in the main proceedings. Therefore, if a prior administrative authorisation scheme is to be justified even though it derogates from a fundamental freedom, it must be based on objective, non-discriminatory criteria known in advance, in such a way as adequately to circumscribe the exercise of the national authorities’ discretion (see, to that effect, inter alia, Case C‑205/99 Analir and Others  [2001] ECR I‑1271, paragraphs 37 and 38, and Müller-Fauré and van Riet , paragraphs 84 and 85).
69. In the province of Upper Austria, the relevant assessment is made on the basis of the answers given by practitioners practising in the catchment area of the independent outpatient dental clinic intended to be set up, even though they are potential direct competitors of that clinic. Such a method is liable to affect the objectivity and impartiality of the treatment of the application for authorisation.