Kostas Konstantinides.
Date: 2013-09-12
42. In the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the Court to provide the national court with an answer which will be of use to it and enable it to determine the case before it. In that light, the Court may have to reformulate the questions referred to it (see, inter alia, Case C‑334/95 Krüger  [1997] ECR I‑4517, paragraphs 22 and 23, and Case C‑243/09 Fuß [2010] ECR I‑9849, paragraph 39 and the case-law cited). To that end, the Court may extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the legislation and the principles of European Union law that require interpretation in view of the subject-matter of the dispute in the main proceedings (see, to that effect, inter alia, Case 83/78 Redmond  [1978] ECR 2347, paragraph 26; Case C‑56/01 Inizan  [2003] ECR I‑12403, paragraph 34; and Fuß , paragraph 40).
44. According to settled case-law, Article 56 TFEU requires not only the elimination of all discrimination against providers of services on grounds of nationality or the fact that they are established in a Member State other than that where the services are to be provided, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (Case C‑577/10 Commission  v Belgium  [2012] ECR I‑0000, paragraph 38 and the case-law cited).
45. It should also be observed that, in particular, the concept of restriction covers measures taken by a Member State which, although applicable without distinction, affect the freedom to provide services in other Member States (see, to that effect, inter alia, Case C‑565/08 Commission  v Italy  [2011] ECR I‑2101, paragraph 46 and the case-law cited).
47. In addition, it must be recalled that rules of a Member State do not constitute a restriction within the meaning of the FEU Treaty solely by virtue of the fact that other Member States apply less strict, or economically more favourable, rules to providers of similar services established in their territory (see Commission  v Italy , paragraph 49 and the case-law cited).
50. As regards the justification for such a restriction, it is settled case-law that national measures which are liable to hinder the exercise of fundamental freedoms guaranteed by the Treaty or make it less attractive may be allowed only if they pursue a legitimate objective in the public interest, are appropriate to ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued (see, inter alia, Case C‑202/11 Las  [2013] ECR I‑0000, paragraph 23 and the case-law cited).
51. It is for the referring court to examine whether, on the assumption that their application in circumstances such as those described in the order for reference constitutes a restriction of the freedom to provide services, the rules at issue in the main proceedings are based on an objective in the public interest. In general, it should be observed that the protection of the health and life of humans, as provided for by Article 36 TFEU, and the protection of consumers are among the objectives which may be regarded as overriding reasons in the public interest capable of justifying a restriction of the freedom to provide services (see, to that effect, inter alia, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 64 and the case-law cited, and Case C‑143/06 Ludwigs-Apotheke  [2007] ECR I‑9623, paragraph 27 and the case-law cited).
56. Even though it does not lay down a complete prohibition of advertising or a particular form of advertising, which, according to settled case-law, is capable of constituting in itself a restriction of the freedom to provide services (see, inter alia, Case C‑500/06 Corporación Dermoestética  [2008] ECR I‑5785, paragraph 33 and the case-law cited), a rule laying down a prohibition relating to the unprofessional nature of the content of advertising, such as Paragraph 27(3) of the Code of professional conduct for doctors in Hesse, which suffers from a certain ambiguity, is liable to constitute an obstacle to the relevant freedom to provide medical services.
60. It must be recalled that, according to settled case-law, the procedure established by Article 267 TFEU is an instrument of cooperation between the Court and national courts by means of which the Court provides national courts with the criteria for the interpretation of European Union law which they need in order to decide the disputes before them (see, inter alia, Case C‑370/12 Pringle  [2012] ECR I‑0000, paragraph 83 and the case-law cited).