Eleftherios-Themistoklis Nasiopoulos v Ipourgos Igias kai Pronias.
Date: 2013-06-27
19. In that regard, the Court recalled that, under the second paragraph of Article 49 EC, freedom of establishment is to be exercised under the conditions which the legislation of the country of establishment lays down for its own nationals. It follows that, where the taking up or pursuit of a specific activity is r egulated in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with the conditions of that regulation (Case C‑55/94 Gebhard  [1995] ECR I-4165, paragraph 36).
20. Since the conditions for access to the profession of physiotherapist have not, to date, been harmonised at European Union level, the Member States remain competent to define such conditions since Directive 2005/36 does not restrict their powers on that point. They must, however, exercise their powers in this area in a manner which respects the basic freedoms guaranteed by the Treaty (see Case C‑108/96 Mac Quen and Others  [2001] ECR I‑837, paragraphs 24 and 25, and Colegio de Ingenieros de Caminos, Canales y Puertos , paragraphs 28 and 29).
25. As the Court has already pointed out in the judgment in Colegio de Ingenieros de Caminos, Canales y Puertos , the legitimate objective of protection of consumers may be achieved through less restrictive means than total exclusion of even partial access to a profession, particularly the obligation to use the professional title of origin or the academic title both in the language in which it was awarded and in its original form, and in the official language of the host Member State (see, by analogy, Colegio de Ingenieros de Caminos, Canales y Puertos , paragraph 38).
27. In that regard, it must be held that, indeed, a particular vigilance is required, as stated, moreover, in Article 52 TFEU, when examining national measures for the protection of public health. As the French Government points out, the mere fact that a Member State has chosen a system of protection different from that adopted by another Member State cannot affect the appraisal as to the need for and proportionality of the provisions adopted (see, inter alia, Mac Quen and Others , paragraphs 33 and 34; Case C‑294/00 Gräbner  [2002] ECR I‑6515, paragraphs 46 and 47; and Case C‑141/07 Commission  v Germany  [2008] ECR I‑6935, paragraph 51).
31. The first scenario concerns cases where, in the Member State of origin and the host Member State, the degree of similarity between the two professions is such that they may be regarded as ‘comparable’ and, accordingly, ‘the same profession’ within the meaning of Article 4(2) of Directive 2005/36. In such a case, any shortcomings in the applicant’s education or training in relation to that required in the host Member State may be effectively made up for through the application of the compensation measures provided for in Article 14(1) of Directive 2005/36, thereby ensuring full integration of the party concerned into the professional system in the host Member State (see Colegio de Ingenieros de Caminos, Canales y Puertos , paragraph 34). Consequently, in such circumstances, there is no infringement of Article 49 TFEU where the host Member State does not grant partial access to a profession.
32. The second scenario, by contrast, concerns cases which are not covered by Directive 2005/36 because the differences between the fields of activity are so great that in reality the applicant should follow a full programme of education and training in order to pursue, in another Member State, the activities for which he is qualified. Viewed objectively, this is a factor which is liable to discourage the party concerned from pursuing those activities in the host Member State (see Colegio de Ingenieros de Caminos, Canales y Puertos , paragraph 35). In such circumstances, there is likely to be an infringement of Article 49 TFEU.
33. In that regard, the Court has noted, firstly, that it is for the authorities and, in particular, the competent courts in the host Member State to determine, in each specific case, to what extent the content of the education and training obtained by the party concerned is different from that required in that State (see Colegio de Ingenieros de Caminos, Canales y Puertos , paragraph 36).
34. Secondly, the Court has also stated that one of the decisive issues to be considered at the outset by the national authorities is whether the professional activity which the party concerned wishes to pursue in the host Member State may, objectively, be separated from the rest of the activities covered by the corresponding profession in that State, the issue of whether that activity may be pursued, independently or autonomously, in the Member State where the professional qualification in question was obtained serving as a guideline in that regard. If that is the case, the conclusion is that the dissuasive effect caused by the preclusion of any possibility of partial recognition of the professional qualification in question is too serious to be offset by the fear of potential harm to the rights of recipients of services (see Colegio de Ingenieros de Caminos, Canales y Puertos , paragraphs 37 and 38).