Sabine Simma Federspiel v Provincia autonoma di Bolzano and Equitalia Nord SpA.
Date: 2017-12-20
25


In that regard, it must be noted that those provisions lay down the obligation to provide remuneration for periods of training in medical specialties in order to prevent the level of training in specialised medicine being compromised, in particular, by the parallel pursuit, in a private capacity, of a paid professional activity (see, to that effect, judgment of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraph 40).
26


Indeed, that obligation is, in itself, unconditional and sufficiently precise (judgment of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraph 44) and is thus entirely linked to fulfilling the requirements for training in specialised medicine (see, to that effect, judgment of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraph 41).
27


Although it is true that trainee specialists enjoy the right to remuneration (see, to that effect, judgment of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraph 42), it does not appear that the condition at issue in the main proceedings affects the corresponding obligation to remunerate them which, moreover, is not, as is apparent from the case-law of the Court, unconditional as regards its level (judgment of 25 February 1999, Carbonari and Others, C‑131/97, EU:C:1999:98, paragraph 47) nor, therefore, the fulfilment of the requirements for training in specialised medicine.
33


As a preliminary point, it must be noted that, in accordance with Article 168(7) TFEU, as interpreted in the case-law of the Court, EU law does not detract from the power of the Member States to adopt provisions aimed at organising their health services. In exercising that power, however, the Member States must comply with EU law, in particular the provisions of TFEU on the freedom of establishment, which prohibit the Member States from introducing or maintaining unjustified restrictions of the exercise of that freedom in the health care sector (see, to that effect, judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud, C‑125/16, EU:C:2017:707, paragraph 54 and the case-law cited).
35


According to the settled case-law of the Court, all the provisions of the Treaty on freedom of movement for persons are intended to facilitate the pursuit by Union nationals of occupational activities of all kinds throughout the EU, and preclude measures that might place Union nationals at a disadvantage when they wish to pursue an activity in the territory of a Member State other than their Member State of origin. In that context, nationals of the Member States have in particular the right, which they derive directly from the Treaty, to leave their Member State of origin to enter the territory of another Member State and reside there in order to pursue an activity there. As a result, Article 45 TFEU precludes any national measure which is capable of hindering or rendering less attractive the exercise by Union nationals of the fundamental freedoms guaranteed by that article (see, to that effect, judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 33 and the case-law cited). The same is true of restrictions of the freedom of establishment laid down in Article 49 TFEU (see, to that effect, judgments of 5 December 2013, Venturini and Others, C‑159/12 to C‑161/12, EU:C:2013:791, paragraph 30, and of 5 April 2017, Borta, C‑298/15, EU:C:2017:266, paragraph 47 and the case-law cited).
36


It must be held that a Member State’s legislation, such as that at issue in the main proceedings, which makes the disbursement of a bursary intended to fund specialist doctor training given in another Member State conditional upon the recipient doctor practising in the Member State of training for a specific period after completion of his specialisation, is liable to deter that doctor from exercising his right to free movement or freedom of establishment, laid down in Articles 45 and 49 TFEU. Indeed, that doctor will be deterred from leaving his Member State of origin to work or establish himself in another Member State, if that leads him to repay up to 70% of the amount of the bursary received, together with interest (see, by analogy, judgment of 8 November 2012, Radziejewski, C‑461/11, EU:C:2012:704, paragraph 31).
38


It is settled case-law that national measures liable to hinder the exercise of fundamental freedoms guaranteed by the Treaty or make it less attractive may be allowed only if they pursue an objective in the public interest, are appropriate for ensuring the attainment of that objective and do not go beyond what is necessary to attain the objective pursued (see judgment of 13 July 2016, Pöpperl, C‑187/15, EU:C:2016:550, paragraph 29 and the case-law cited).
40


It must be noted that the question of establishing what objectives are in fact pursued by the national legislation is, in the context of a case referred to the Court under Article 267 TFEU, within the jurisdiction of the referring court (see, in particular, judgment of 15 September 2011, Dickinger and Ömer, C‑347/09, EU:C:2011:582, paragraph 51).
42


In that connection, it must be recalled that human health and life rank foremost among the assets and interests protected by the Treaty. Furthermore, not only may the risk of seriously compromising the financial equilibrium of a social security system constitute, per se, an overriding reason relating to the general interest capable of justifying an obstacle to the fundamental freedoms laid down by TFEU, but in addition the objective of maintaining, on grounds of public health, a balanced medical and hospital service open to all may also fall within one of the derogations on grounds of public health, in so far as it contributes to the attainment of a high level of health protection. This thus applies to measures that, on the one hand, meet the objective of guaranteeing in the territory of the Member State concerned sufficient and permanent access to a balanced range of high-quality medical treatment and, on the other, are intended to ensure cost efficiency and prevention, as far as possible, of any wastage of financial, technical and human resources (see, to that effect, judgment of 28 January 2016, CASTA and Others, C‑50/14, EU:C:2016:56, paragraph 60 and paragraph 61).
45


In that regard, it must, first, be recalled that it follows from the case-law of the Court that it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved. Since that level may vary from one Member State to another, Member States must be allowed a measure of discretion in that area (see, to that effect, judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud, C‑125/16, EU:C:2017:707, paragraph 60).