Deutsche Paracelsus Schulen für Naturheilverfahren GmbH v Kurt Gräbner.
Date: 2002-07-11
26 In that regard, it should be stated at the outset that consistent case-law shows that, 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, and Case C-108/96 Mac Quen and Others [2001] I-837, paragraph 24).
32 With respect to the similar definitions of the terms `regulated profession' and `regulated professional activity' appearing in Article 1(c) and (d) of Directive 89/48, the Court has already held that access to or pursuit of a profession must be regarded as directly governed by legal provisions where the laws, regulations or administrative provisions of the host Member State concerned create a system under which that professional activity is expressly reserved to those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them (Case C-164/94 Aranitis [1996] ECR I-135, paragraph 19, and Case C-234/97 Fernández de Bobadilla [1999] I-4773, paragraph 17). A profession must be regarded as indirectly regulated where there is indirect legal control of access to or pursuit of that profession (see Aranitis, cited above, paragraph 27).
38 Articles 52 and 59 of the Treaty require the removal of restrictions on the freedom of establishment and the freedom to provide services respectively. All measures which are liable to prohibit, impede or render less attractive the exercise of those freedoms must be considered to be such restrictions (see to that effect, as regards freedom of establishment, Case C-168/91 Konstantinidis [1993] ECR I-1191, paragraph 15, and, as regards freedom to provide services, Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 21).
39 According to the Court's case-law, national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty can be justified only if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37, Case C-424/97 Haim [2000] ECR I-5123, paragraph 57, and Mac Quen, cited above, paragraph 26).
46 It should be borne in mind, however, that the fact that one Member State imposes less strict rules than another Member State does not necessarily mean that the latter's rules are disproportionate and hence incompatible with Community law (see Case C-3/95 Reisebüro Broede [1996] ECR I-6511, paragraph 42, Mac Quen, paragraph 33, and Case C-309/99 Wouters and Others [2002] ECR I-0000, paragraph 108).
47 The mere fact that a Member State has chosen a system of protection different from that adopted by another Member State cannot affect the appraisal of the need for and proportionality of the provisions adopted (Case C-67/98 Zenatti [1999] ECR I-7289, paragraph 34, and Mac Quen, paragraph 34).