European Commission v Hellenic Republic.
Date: 2019-06-26
For the purpose of determining the scope of this action for failure to fulfil obligations, it should be noted that the question whether a Member State has failed to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, to that effect, judgment of 27 April 2017, Commission v Greece, C‑202/16, not published, EU:C:2017:318, paragraph 37 and the case-law cited).
In the event of a later amendment to the national legislation called into question in proceedings for failure to fulfil obligations, the Commission does not change the subject matter of its action by attributing the complaints formulated against the previous legislation to the legislation arising from the amendment adopted, where the content of the two versions of the national legislation is identical (see, to that effect, judgment of 21 March 2013, Commission v France, C‑197/12, not published, EU:C:2013:202, paragraph 26 and the case-law cited).
Conversely, the subject matter of the dispute may not be extended to obligations arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of the infringement procedure (see, to that effect, judgment of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 52 and the case-law cited).
In that regard, it should be recalled, in the first place, that it follows from recital 6 of Directive 2006/123 that barriers to the freedom of establishment may not be removed solely by relying on direct application of Article 49 TFUE, owing, inter alia, to the extreme complexity of addressing barriers to that freedom on a case-by-case basis (see, to that effect, judgment of 16 June 2015, Rina Services and Others, C‑593/13, EU:C:2015:399, paragraph 38), and that, consequently, a directive should be adopted on that subject.
It follows that, where a restriction of the freedom of establishment falls within the scope of Directive 2006/123, there is no need to examine it in the light also of Article 49 TFEU (see, to that effect, judgments of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraph 118, and of 30 January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 137).
It need hardly be pointed out that the requirement relating to the legal form of mediator training institutions laid down in Article 5 of Law 3898/2010, to the effect that mediator training institutions must take the form of non-profit companies, is expressly caught by Article 15(2)(b) of Directive 2006/123 (see, to that effect, judgment of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraphs 61 and 62).
That having been clarified, as regards whether the profession of mediator constitutes a ‘regulated profession’ within the meaning of Article 3(1)(a) of Directive 2005/36, it should be recalled that regulated profession is defined as 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 (judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud, C‑125/16, EU:C:2017:707, paragraph 34 and the case-law cited).
Thus, 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 (judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud, C‑125/16, EU:C:2017:707, paragraph 35 and the case-law cited).
Those conclusions cannot be called into question by the argument that,  in practice, the administrative authorities may refrain from applying such a condition, as it is common ground that, even if, in practice, the authorities of a Member State do not apply a national provision which is at variance with EU law, legal certainty nevertheless requires that that provision be amended (see, to that effect, judgment of 5 July 2007, Commission v Belgium, C‑522/04, EU:C:2007:405, paragraph 70 and the case-law cited).