European Commission v Republic of Austria.
Date: 2019-07-29
37


In the second place, it follows from Article (2)(2)(f) of Directive 2006/123 that ‘healthcare services’ are expressly excluded from the scope of that directive. However, according to recital 22 of that directive, the services referred to in that exception are those ‘provided by health professionals to patients to assess, maintain or restore their state of health’, which implies that they are provided to humans (judgment of 1 March 2018, CMVRO, C‑297/16, EU:C:2018:141, paragraph 39).
48


It should be observed that the question whether a Member State has failed to fulfil 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 and the Court cannot take account of any subsequent changes (judgment of 28 November 2018, Commission v Slovenia, C‑506/17, not published, EU:C:2018:959, paragraph 50 and the case-law cited).
52


Article 14 of Directive 2006/123 prohibits Member States from making access to, or the exercise of, a service activity in their territory subject to compliance with any of the requirements set out in points 1 to 8 of that article, thus requiring them to abolish those requirements as a matter of priority and systematically. In addition, no justification can be given for the requirements listed in Article 14 of that directive (judgment of 16 June 2015, Rina Services and Others, C‑593/13, EU:C:2015:399, paragraph 28).
80


It follows from Article 15(5) and (6) of the directive that the Member States are allowed to maintain or, as the case may be, introduce requirements of the kind listed in Article 15(2), provided that they satisfy the conditions laid down in Article 15(3) (see, to that effect, judgment of 16 June 2015, Rina Services and Others, C‑593/13, EU:C:2015:399, paragraph 33).
82


It follows, in particular, that, while it is indeed for a Member State relying on an overriding reason of general interest to justify a requirement within the meaning of Article 15 of the directive to demonstrate that its rules are appropriate and necessary to attain the legitimate objective pursued, that burden of proof cannot extend to requiring the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions (see, to that effect, judgments of 28 April 2009, Commission v Italy, C‑518/06, EU:C:2009:270, paragraph 84 and the case-law cited; of 24 March 2011, Commission v Spain, C‑400/08, EU:C:2011:172, paragraph 123; and of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 55). Such a requirement would amount in practice to depriving the Member State concerned of its legislative power in the field in question.
85


It must therefore be ascertained whether the national requirements at issue satisfy the conditions laid down in Article 15(3) of Directive 2006/123, namely that they must be non-discriminatory, necessary and proportionate to the attainment of an overriding reason relating to the public interest (see, to that effect, judgment of 1 March 2018, CMVRO, C‑297/16, EU:C:2018:141, paragraph 54).
89


The objectives of the protection of recipients of services, guaranteeing the quality of services and protection of health are overriding reasons relating to the public interest, capable of justifying restrictions of the freedoms guaranteed by EU law (see, to that effect, judgments of 3 October 2000, Corsten, C‑58/98, EU:C:2000:527, paragraph 38, and of 1 March 2018, CMVRO, C‑297/16, EU:C:2018:141, paragraph 57).
91


In this respect, it follows from the wording of Article 15(3) of Directive 2006/123 that it is for the Member State concerned to verify, and consequently to demonstrate, by relying on specific evidence substantiating its arguments, that requirements such as those at issue in the present case satisfy the conditions laid down by that provision (see, to that effect, judgment of 23 January 2014, Commission v Belgium, C‑296/12, EU:C:2014:24, paragraph 33 and the case-law cited).
93


As regards the objective of protection of public health, it follows from the Court’s case-law that requirements relating to shares in companies of veterinary surgeons being held exclusively by members of that profession are suitable for reducing the risks that such companies may adopt economic strategies liable to undermine the objective of protection of health and the independence of veterinary surgeons (see, to that effect, judgment of 1 March 2018, CMVRO, C‑297/16, EU:C:2018:141, paragraphs 82 and 83).
94


However, it must be recalled that, according to settled case-law of the Court, national legislation is suitable for securing the attainment of the objective pursued only if it genuinely reflects a concern to attain the objective in a consistent and systematic manner (see, to that effect, judgments of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 55; of 15 October 2015, Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685, paragraph 76; and order of 30 June 2016, Sokoll-Seebacher and Naderhirn, C‑634/15, EU:C:2016:510, paragraph 27).
104


It must be observed that the legitimate pursuit of the objectives of protection of health and the independence of veterinary surgeons cannot justify the complete exclusion of non-veterinary operators from holding shares in companies of veterinary surgeons, where it is not excluded that veterinary surgeons will be able to supervise such companies effectively even if they do not hold all the shares in those companies, in so far as the holding of a limited number of those shares by persons who are not veterinary surgeons will not necessarily prevent such supervision (see, to that effect, judgment of 1 March 2018, CMVRO, C‑297/16, EU:C:2018:141, paragraph 86).