Domnica Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe.
Date: 2010-01-12
32. In the first place, as regards the scope of the Directive, it follows from Article 3(1)(a) and (c) of the Directive that it applies, within the framework of the areas of competence conferred on the Community, to all persons in relation to conditions for access to employment, to self-employment or to occupation, and to employment and working conditions, including dismissals and pay (see Case C‑411/05 Palacios de la Villa  [2007] ECR I‑8531, paragraph 43, and Case C‑388/07 Age Concern England  [2009] ECR I‑0000, paragraph 24).
34. In the second place, as regards the question whether the legislation at issue in the main proceedings contains a difference of treatment on grounds of age in relation to employment and occupation, it must be noted that, under Article 2(1) of the Directive, for the purposes of the Directive, the ‘principle of equal treatment’ is to mean that there must be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of the Directive. Article 2(2)(a) states that, for the purposes of the application of Article 2(1), direct discrimination is to be taken to occur where one person is treated less favourably than another in a comparable situation, on any of the grounds referred to in Article 1 of the Directive (see Palacios de la Villa , paragraph 50, and Age Concern England , paragraph 33).
40. As the Court has previously held, where the national legislation in question does not specify the aim pursued, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (see Palacios de la Villa , paragraph 57, and Age Concern England , paragraph 45).
41. The German Government stated in its observations at the hearing before the Court that the legislature had intended to keep the age limit at issue in the main proceedings for a limited observation period, in order to ascertain whether the problems connected with the excess supply of care provided by panel dentists had indeed disappeared despite the abolition of the quotas. The legislature thought it prudent, while awaiting the results of that exercise, to maintain a measure intended to limit the number of panel dentists, and hence expenditure on health, by providing that dentists who had reached the age of 68 could no longer practice in the panel scheme. Maintaining the age limit thus, according to the government, pursued the original objective of the GSG 1993, which was primarily to control public health expenditure.
45. It follows from the case-law that not only the objective of maintaining a high-quality medical service but also that of preventing the risk of serious harm to the financial balance of the social security system are covered by the objective of protection of public health in so far as they both contribute to achieving a high level of protection of health (see, to that effect, Case C‑372/04 Watts  [2006] ECR I‑4325, paragraphs 103 and 104, and Case C‑169/07 Hartlauer  [2009] ECR I‑0000, paragraphs 46 and 47).
48. It should be recalled, however, that the fact that the referring court has, formally, worded the question referred for a preliminary ruling with reference to certain provisions of Community law does not prevent the Court from providing that court with all the elements of interpretation which may be of assistance in adjudicating in the case pending before it, whether or not it has referred to them in the wording of its questions. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision making the reference, the points of Community law which require interpretation in view of the subject-matter of the dispute (see Case C‑115/08 ČEZ  [2009] ECR I‑0000, paragraph 81).
51. In the case of a measure in the field of health, it should be recalled that, in accordance with the case-law and with Article 152(5) EC, the Member States retain power to organise their social security systems and to adopt, in particular, provisions intended to govern the organisation and delivery of health services and medical care. The Member States must indeed exercise that power in compliance with Community law, but, when assessing whether that obligation has been complied with, account must be taken of the fact that a Member State may determine the level of protection which it wishes to afford to public health and the way in which that level is to be achieved. Since the level of protection may vary from one Member State to the other, Member States must be allowed discretion (see Hartlauer , paragraphs 29 and 30, and Joined Cases C‑171/07 and C‑172/07 Apothekerkammer des Saarlandes and Others  [2009] ECR I‑0000, paragraphs 18 and 19).
52. In view of that discretion, it must be accepted that, in the context of Article 2(5) of the Directive, a Member State may find it necessary to set an age limit for the practice of a medical profession such as that of a dentist in order to protect the health of patients. That consideration applies whether the objective of the protection of health is considered from the point of view of the competence of dentists or the financial balance of the national healthcare system. As regards the latter, it cannot be ruled out that the rising number of panel dentists led to an excessive increase in the supply of healthcare, resulting in an excessive level of expenditure to be borne by the State, and that the departure of the oldest of those dentists makes it possible to reduce that expenditure and avert a risk of serious harm to the balance of the social security system. As to setting the age limit at 68, that age may be regarded as sufficiently high to serve as the endpoint of admission to practise as a panel dentist.
53. To assess whether the measure is necessary in relation to the objective pursued, it must also be ascertained whether the exceptions to the age limit at issue in the main proceedings interfere with the consistency of the legislation in question by leading to a result that is contrary to that objective. It must be remembered that legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see Hartlauer , paragraph 55).
59. The Court has allowed certain exceptions to rules adopted on grounds of the protection of health, but these were limited in time and scope (see Case C‑531/06 Commission  v Italy  [2009] ECR I‑0000, paragraph 73).
60. To assess the effect of the fourth exception on the consistency of the measure at issue in the main proceedings from the point of view of Article 2(5) of the Directive, account must also be taken of the nature and wording of that provision. As it is an exception to the principle of the prohibition of discrimination, it must be interpreted strictly. The terms used in Article 2(5) also suggest such an approach.
61. A measure to which there is so broad an exception as that for dentists practising outside the panel system cannot be regarded as essential for the protection of public health. If the aim of the age limit at issue in the main proceedings is the protection of patients’ health, from the point of view of the competence of the practitioners concerned, clearly patients are not protected where the exception applies. The exception thus appears to run counter to the objective pursued. Moreover, it is not limited temporally and, although no figures have been supplied, it potentially applies to all dentists and appears liable to concern a not inconsiderable number of patients.
65. According to the order for reference, the Bundessozialgericht took the view that the age limit at issue in the main proceedings was justified by a second objective, namely to share out among the generations employment opportunities in the profession of panel dentist. That objective was also relied on, in the alternative, by the German Government in its oral observations.
68. The Court has previously held that the encouragement of recruitment undeniably constitutes a legitimate social policy or employment policy objective of the Member States, and that that assessment must evidently apply to instruments of national employment policy designed to improve opportunities for entering the labour market for certain categories of workers (see Palacios de la Villa , paragraph 65). Similarly, a measure intended to promote the access of young people to the profession of dentist in the panel system may be regarded as an employment policy measure.
70. In this respect, in view of developments in the employment situation in the sector concerned, it does not appear unreasonable for the authorities of a Member State to consider that the application of an age limit, leading to the withdrawal from the labour market of older practitioners, may make it possible to promote the employment of younger ones. As to the setting of the age limit at 68, that age, as observed in paragraph 52 above, would appear to be sufficiently high to serve as the endpoint of admission to practise as a panel dentist.
80. The Court has held that all administrative bodies are subject to the obligation to respect the primacy of Community law (see, inter alia, Case 103/88 Costanzo  [1989] ECR 1839, paragraph 32, and Case C‑224/97 Ciola  [1999] ECR I‑2517, paragraph 30). That applies to an administrative body such as the Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe. The fact that the national provisions at issue in the main proceedings were already in existence before the entry into force of the Directive is immaterial. It is also immaterial that those provisions did not make provision for the national court to disapply them in the event of their incompatibility with Community law.
81. Consequently, the answer to the third question is that, if legislation such as that at issue in the main proceedings, having regard to its objective, were contrary to the Directive, it would be for the national court hearing a dispute between an individual and an administrative body such as the Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe to decline to apply that legislation, even if it were prior to the Directive and national law made no provision for disapplying it.
Costs