Commission of the European Communities v Federal Republic of Germany.
Date: 2007-12-06
15. It should be pointed out that, in accordance with settled case-law, the question whether a Member State has failed to fulfil its 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 (see, inter alia, Case C‑525/03 Commission v Italy  [2005] ECR I‑9405, paragraph 14).
16. It is therefore necessary to establish whether, at that date, the contested legislation continued to produce effects (see, to that effect, Joined Cases C‑20/01 and C‑28/01 Commission v Germany  [2003] ECR I‑3609, paragraph 34 and 37; Case C‑125/03 Commission  v Germany , not published in the ECR, paragraphs 12 and 13; and Commission  v Italy , paragraph 16).
22. It must be pointed out in this regard that, in accordance with the procedure laid down in Article 226 EC, the Commission may bring a matter before the Court if it considers that a Member State has failed to fulfil an obligation under the Treaty. That article contains no condition as to the degree of gravity of the infringement. As is clear from settled case-law, it is for the Commission to determine whether it is expedient to take action against a Member State, what provisions the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine that choice cannot affect the admissibility of the action (see Case C‑33/04 Commission  v Luxembourg  [2005] ECR I‑10629, paragraph 66). It follows that any infringement of the Treaty, irrespective of its gravity, may be the subject of an action under that article.
25. Suffice it to note in that regard that, when exercising its powers under Article 226 EC, the Commission does not have to show that there is a specific interest in bringing an action. The Commission’s function is to ensure, of its own motion and in the general interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (see Commission  v Luxembourg , paragraph 65). In addition, as has been pointed out in paragraph 22 of the present judgment, it is for the Commission to determine whether it is expedient to take action against a Member State.
48. In the absence of harmonisation of the activities of psychotherapists, the Member States remain, in principle, competent to define the conditions of access to those activities. However, they must, when exercising their powers in this area, respect the basic freedoms, in particular the freedom of establishment guaranteed by Article 43 EC (see, to that effect, Case C‑58/98 Corsten  [2000] ECR I‑7919, paragraph 31, and Vlassopoulou , paragraph 9).
49. According to settled case-law, that article 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, including those of the Member State which adopted the measure, of the fundamental freedoms guaranteed by the Treaty. The situation will be different only if such a measure may be justified by overriding reasons of general interest, provided that the measure in question is appropriate for ensuring attainment of the objective pursued and does not go beyond what is necessary for that purpose (see, in particular, Case C‑19/92 Kraus  [1993] ECR I‑1663, paragraph 32; Case C‑79/01 Payroll and Others  [2002] ECR I‑8923, paragraphs 26 and 28; and Case C‑140/03 Commission  v Greece  [2005] ECR I‑3177, paragraphs 27 and 34).
56. It must be pointed out that the Court has already ruled that a law, even if applicable to all, which makes entitlement to a right subject to a condition of residence in a region of a Member State, and thereby favours nationals of that Member State over nationals of other Member States, runs counter to the principle of non-discrimination laid down in Article 12 EC (see, to that effect, with regard to the right to plead in one’s mother tongue, Case C‑274/96 Bickel and Franz  [1998] ECR I‑7637, paragraph 26).
58. With regard, more particularly, to the second category of persons mentioned in paragraph 55 of this judgment, that is to say, psychotherapists established in Germany who exercised their freedom of establishment during the reference period by establishing themselves in another Member State, the Court has already ruled that it would be incompatible with the right of freedom of movement were a citizen of the European Union, in the Member State of which he is a national, to receive treatment less favourable than that which he would enjoy had he not availed himself of the freedoms offered by the Treaty in relation to movement (Case C‑224/98 D’Hoop  [2002] ECR I‑6191, paragraph 30, and, to that effect, Case C‑224/02 Pusa  [2004] ECR I‑5763, paragraph 20).
63. The protection of an established right, namely, the retention of patients following several years of professional activity, constitutes an overriding ground of public interest. A Member State may consider it necessary in such a case to protect a practice and, by the same token, the professional activity of the persons concerned by means of the adoption of appropriate measures.
65. It is important, however, that those provisions should not go beyond what is necessary in order to attain that objective (Case C‑55/94 Gebhard  [1995] ECR I‑4165, paragraph 37).