Colegiul Medicilor Veterinari din România (CMVRO) v Autoritatea Naţională Sanitară Veterinară şi pentru Siguranţa Alimentelor.
Date: 2018-03-01
39


It is clear from Article 2(2)(f) of Directive 2006/123 that ‘healthcare services’ are expressly excluded from the scope of that directive. However, recital 22 of the directive states that the services that are excluded are those ‘provided by health professionals to patients to assess, maintain or restore their state of health’, which suggests that they are provided to human beings.
54


As a consequence, such a requirement must satisfy the three conditions laid down in Article 15(3) of that directive, that is, they must be non-discriminatory, necessary and proportionate to the attainment of an overriding requirement relating to the public interest.
57


It is the Court’s established case-law that the protection of public health is one of the overriding requirements relating to the public interest recognised by EU law and that such a requirement may justify the adoption by a Member State of measures to ensure that the provision of medicinal products to the public is reliable and of good quality (see, to that effect, inter alia, judgment of 5 December 2013, Venturini and Others, C‑159/12 to C‑161/12, EU:C:2013:791, paragraphs 41 and 42).
59


With regard to the first element, in general terms, attention must be drawn to the very particular nature of medicinal products, whose therapeutic effects distinguish them substantially from other goods (judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 31).
60


Accordingly, the Court has accepted, in particular, that a requirement designed to restrict the sale of medicinal products to certain professionals may be justified because of the safeguards which such professionals must provide and the information which they must be in a position to furnish to consumers (see, to that effect, inter alia, judgment of 19 May 2009, Commission v Italy, C‑531/06, EU:C:2009:315, paragraph 58).
64


With regard to the second element of the third condition, namely that the requirement concerned should not go beyond what is necessary to attain the objective in question, it should be noted that the protection of public health ranks foremost among the assets or interests protected by the EU Treaty and that it is for the Member States to determine the degree of protection which it wishes to afford to public health and the way in which that degree of protection is to be achieved. As this may vary from one Member State to another, Member States must be allowed a measure of discretion (see, to that effect, judgment of 11 September 2008, Commission v Germany, C‑141/07, EU:C:2008:492, paragraph 51).
65


Such discretion is especially important where, if there is uncertainty as to the existence or extent of risks to human health, a Member State must be able to take protective measures without having to wait until the reality of those risks becomes fully apparent. In particular, Member States must be able to take any measure capable of reducing, as far as possible, a health risk, including a risk to the reliability and quality of the provision of medicinal products to the public (see, to that effect, judgment of 5 December 2013, Venturini and Others, C‑159/12 and C‑161/12, EU:C:2013:791, paragraph 60).
71


As regards the fact, also alluded to by the Commission, that certain veterinary medicinal products are available for sale only on prescription, it being understood that the prescription will indicate how the product is to be administered and the dosage, bearing in mind the discretion enjoyed by the Member States, the latter are entitled to take the view that, in itself, a prescription is not sufficient to rule out the risk that medicinal products thus prescribed may be administered incorrectly or in inappropriate quantities (see, by analogy, judgment of 16 December 2010, Commission v France, C‑89/09, EU:C:2010:772, paragraph 60).
82


In that regard, bearing in mind the discretion enjoyed by Member States, as indicated in paragraph 64 above, the latter may consider that there is a risk that, if persons who are not veterinary practitioners are in a position to exert influence on the operation of establishments retailing veterinary medicinal products, such persons may adopt economic strategies that may undermine the objective of providing animal owners with medicinal products which are reliable and of good quality and compromise the independence of veterinary practitioners who are involved in such establishments, inter alia by encouraging them to sell off medicinal products which it is no longer profitable to keep in stock or by making reductions in operating costs (see, by analogy, judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 40).
83


By requiring that the operation of the establishments in question is conducted in such a way that veterinary practitioners hold all the shares in such establishments, legislation such as that at issue in the main proceedings is appropriate for the purpose of minimising such a risk and thus ensuring that the objective pursued by the legislation is attained.
84


Veterinary practitioners who are shareholders in an establishment that retails veterinary medicinal products are, unlike economic operators who are not veterinary practitioners, subject to rules of professional conduct designed to moderate the pursuit of profit, so that their interest connected with the making of a profit is tempered by the responsibility which they have in this area, given that any breach of the rules of law or professional conduct undermines not only the value of their investment but also their own professional existence (see, by analogy, judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 37).
86


While, as is clear from the Court’s case-law cited in paragraph 82 above, a Member State may lawfully prevent economic operators who are not veterinary practitioners from being in a position to exert decisive influence over the operation of establishments retailing veterinary medicinal products, the objective referred to in that paragraph cannot justify a provision that totally precludes such operators from holding shares in such establishments, as it is perfectly plausible that veterinary practitioners will be able to monitor such establishments effectively even if they do not hold all the shares in those establishments, given that the fact that a limited number of those shares are held by persons who are not veterinary practitioners will not necessarily make such monitoring impossible. Accordingly, national legislation such as that at issue in the main proceedings goes beyond what is necessary to attain the objective pursued by the legislation.