Malta Dental Technologists Association and John Salomone Reynaud v Superintendent tas-Saħħa Pubblika and Kunsill tal-Professjonijiet Kumplimentari għall-Mediċina.
Date: 2017-09-21
28


In this respect, it should be noted that, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraph 20 and the case-law cited).
29


Furthermore, it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling (judgment of 17 April 2007, AGM-COS.MET, C‑470/03, EU:C:2007:213, paragraph 45 and the case-law cited).
30


As regards the alleged absence, in the eyes of the Austrian Government, of any cross-border element in the dispute in the main proceedings, it should be pointed out that, apart from the fact that the questions concern, not only the provisions of the TFEU, but also Directive 2005/36, the national court referred the matter to the Court of Justice in proceedings, brought by an association of dental technologists, that is to say, the MDTA, concerning the lawfulness of national provisions which apply, not only to Maltese nationals, but also to nationals from other Member States. Accordingly, the decision which that court will adopt following the ruling of the Court of Justice will also have effects on the nationals of other Member States (see, to that effect, judgments of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 35, and of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 51).
34


Under Article 3(1)(a) of Directive 2005/36, ‘regulated profession’ means a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions, to the possession of specific professional qualifications. Thus, the definition of ‘regulated profession’ within the meaning of that directive is a matter of EU law (judgment of 6 October 2015, Brouillard, C‑298/14, EU:C:2015:652, paragraph 36 and the case-law cited).
35


It follows from Article 3(1)(b), (c) and (e) of Directive 2005/36 that the concept of ‘specific professional qualifications’ in Article 3(1)(a) of that directive covers all qualifications relating to training which is specifically designed to prepare candidates to exercise a given profession (see, to that effect, judgment of 6 October 2015, Brouillard, C‑298/14, EU:C:2015:652, paragraph 38).
40


The expression ‘that profession’ in the first subparagraph of Article 13(1) of Directive 2005/36 must be construed as covering professions which, in the home Member State and the host Member State, are identical or analogous or, in some cases, simply equivalent in terms of the activities they cover (see, to that effect, judgment of 19 January 2006, Colegio de Ingenieros de Caminos, Canales y Puertos, C‑330/03, EU:C:2006:45, paragraph 20).
41


It falls to the referring court to take account of each of the activities covered by the profession in question in both Member States concerned, that is to say the profession of dental technologist in Malta and the profession of CDT in another Member State, in order to determine whether it actually is the same profession for the purposes of the first subparagraph of Article 13(1) of Directive 2005/36 (see, to that effect, judgment of 19 January 2006, Colegio de Ingenieros de Caminos, Canales y Puertos, C‑330/03, EU:C:2006:45, paragraph 20).
53


In that respect, it must be recalled that the Member States must, when exercising their powers to determine the conditions referred to in the preceding paragraph, respect the basic freedoms guaranteed by the TFEU (see, by analogy, judgment of 27 June 2013, Nasiopoulos, C‑575/11, EU:C:2013:430, paragraph 20 and the case-law cited).
54


It is true that, in accordance with Article 168(7) TFEU, as interpreted in the case-law of the Court, EU law does not detract from the power of the Member States to adopt provisions aimed at organising their health services. In exercising that power, however, the Member States must comply with EU law, in particular the provisions of the TFEU on the freedom of establishment, which prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of that freedom in the health care sector (judgment of 26 September 2013, Ottica New Line, C‑539/11, EU:C:2013:591, paragraph 24 and the case-law cited).
56


It is settled case-law that restrictions on freedom of establishment which are applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective (judgment of 26 September 2013, Ottica New Line, C‑539/11, EU:C:2013:591, paragraph 33 and the case-law cited).
60


The Court has consistently held that, in order to assess whether a Member State has observed the principle of proportionality in the area of public health, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the TFEU and that it is for the Member States to determine the degree of protection which they wish to afford to public health and the way in which that degree of protection is to be achieved. Since that level may vary from one Member State to another, Member States must be allowed a measure of discretion in that area (see, to that effect, judgment of 19 October 2016, Deutsche Parkinson Vereinigung, C‑148/15, EU:C:2016:776, paragraph 30 and the case-law cited).
61


At the same time, a particular vigilance is required when examining national measures for the protection of public health (see, to that effect, judgment of 27 June 2013, Nasiopoulos, C‑575/11, EU:C:2013:430, paragraph 27).