Commission of the European Communities v French Republic.
Date: 2004-03-11
55. First of all, in the absence of harmonisation of a profession, Member States remain, in principle, competent to define the exercise of that profession but must, when exercising their powers in this area, respect the basic freedoms guaranteed by the Treaty (see, in particular, Case C-58/98 Corsten  [2000] ECR I-7919, paragraph 31; Case C-108/96 Mac Quen and Others  [2001] ECR I-837, paragraph 24; and Case C-294/00 Gräbner  [2002] ECR I‑6515, paragraph 26).
64. Article 49 EC requires that all restrictions on the freedom to provide services be removed. Any measure prohibiting, impeding or rendering less attractive the exercise of that freedom is to be considered such a restriction (see Case C‑205/99 Analir and Others  [2001] ECR I‑1271, paragraph 21, and Gräbner , cited above, paragraph 38). Article 49 EC precludes the application of any national legislation which, without objective justification, impedes a provider of services from actually exercising that freedom (see, in particular, Case C-381/93 Commission  v France  [1994] ECR I-5145, paragraph 16, and Case C‑451/99 Cura Anlagen  [2002] ECR I‑3193, paragraph 29).
65. The French Government does not deny that rules under which authorisation to operate a bio-medical analysis laboratory can be granted only to a laboratory with a place of business in France constitutes such a restriction on the exercise of freedom to provide services. It is clear that the requirement for a place of business in France makes it impossible for laboratories which have their place of business in another Member State to offer services in France.
66. As regards the reasons which may justify a restriction on the freedom to provide services in the sector of bio-medical analysis laboratories, the aim of maintaining the quality of medical services may be covered by one of the derogations provided for in Article 46 EC, in so far as it contributes to the attainment of a high level of health protection (see, to that effect, Case C‑385/99 Müller-Fauré and Van Riet  [2003] ECR I‑4509, paragraph 67).
68. However, according to settled case-law, where measures taken are justified on the basis of an exception provided for in the Treaty, it must be established that those measures do not go beyond what is objectively necessary for the aim to be achieved (see, to that effect, Case C‑100/01 Oteiza Olazabal  [2002] ECR I‑10981, paragraph 43, and Case C‑192/01 Commission  v Denmark  [2003] ECR I‑0000, paragraph 45).
71. However, the conditions to be satisfied in order to obtain such authorisation may not duplicate the equivalent statutory conditions which have already been satisfied in the State of establishment (see, to that effect, Commission  v Germany , cited above, paragraph 47).
73. As regards the need for effective controls, the French Government has failed to show that, even within the framework of an approval scheme, the competent authorities could not fulfil their supervisory function effectively unless bio-medical analysis laboratories had a permanent establishment in that Member State (see, to that effect, Commission  v Germany , cited above, paragraph 54).