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With the recent

draft Directive on a proportionality test before adoption of new regulation of professions, the EU Commission puts actually in place two tests :

  • the current test of proportionality that has been developed by the European judge since the Treaty of Rome (and which is not repelled by the draft Directive)
  • & concomitantly a new test that would be used by Member States in the limits of the draft Directive’s framework.

Public Health is not however treated likewise by both instruments.

The draft Directive seems to abide with the Treaty and its interpretation provided by the European Court of Justice; in its provisions, Public Health is duly categorised as a “Justification on grounds of public interest objectives” (in Article 5(1) and (2)) :

“Member States shall ensure that legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions they intend to introduce and amendments they intend to make to existing provisions are justified by public interest objectives.

The relevant competent authorities shall consider in particular whether those provisions are objectively justified on the basis of public policy, public security or public health, (…)”.

But no other developments detail this Public Health’s objective or counterbalance the economic criteria of appreciation that are heavily set by the draft Directive’s proportionality test (in the sole Article 6).

That is a surprise given that, in European case-law, Public Health benefits from a much more nuanced approach.

In other words, the problem raised by the draft Directive stems from the difference of level of details between Article 6 (test) and Article 5 (justifications), leading to an unbalenced legal architecture.

We are not going to recall here 60 years of decisions of justice. We will remind a settled principle and some of its illustrations.

The principle of compatibility between the Public Health’s provisions and the Single Market’s requirements has been well-known for decades :

“First, it should be recalled that it is clear, both from the case-law of the Court and from Article 152(5) EC, that Community law does not detract from the power of the Member States 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. In exercising that power, however, the Member States must comply with Community law, in particular the provisions of the Treaty on the freedoms of movement, including freedom of establishment. Those provisions prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of those freedoms in the healthcare sector.” 

ref : Case C-169/07 Hartlauer [2009] ECR I-1721 §29

The draft Directive proposed by the EU Commission relies on this principle that has been accepted and shared by regulators of Health professions for years.

At the time however of assessing whether a national provision is justified, the traditional Proportionality Test applied to Public Health services has been nuanced with various details that the draft Directive does not list or even remind.

According to the European judge, when it comes to Public Health’s organisation :

  • Health is not just like any other policies covered by the Treaty :

“(…) account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the Treaty (…)”.

Joined Cases C-570/07 and C-571/07 Blanco Perez [2010] ECR I-4629 §44

  • Discretion is granted to Member States :

“In that regard, it should, first, be borne in mind that, according to the Court’s settled case-law, when assessing whether the principle of proportionality has been observed in the field of public health, account must be taken of the fact that it is for the Member State to 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.”

This recurrent wording from the European case-law is recalled in Recital 12 of the draft Directive.

ref : Joined cases C-159/12 to C-161/12 Venturini [2013], §59

“It should first be noted that, pursuant to Article 168(7) TFEU, as clarified by the case-law of the Court and by recital 26 in the preamble to Directive 2005/36, EU law does not detract from the power of the Member States to organise their social security systems and to adopt, in particular, provisions to govern the organisation of health services such as pharmacies. In exercising that power, however, Member States must comply with EU law and, in particular, with the Treaty provisions on the fundamental freedoms, since those provisions prohibit Member States from introducing or maintaining unjustified restrictions on the exercise of those freedoms in the healthcare sector (…). 

That being so, when assessing whether that obligation has been complied with, account must be taken of the fact that the health and life of humans rank foremost among the assets and interests protected by the Treaty and 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 the level may vary from one Member State to another, Member States should be allowed a measure of discretion.”

ref Joined Cases C-570/07 and C-571/07 Blanco Perez [2010] ECR I-4629 §43, 44

  • Comparison between Member States’ choices are not relevant :

“In that connection, it should first be noted that, in view of the discretion referred to in paragraph 44 above, the fact that one Member State imposes more stringent rules than another in relation to the protection of public health does not mean that those rules are incompatible with the Treaty provisions on the fundamental freedoms.” 

ref : Joined Cases C-570/07 and C-571/07 Blanco Perez [2010] ECR I-4629 §68

Comments from other Member States on the domestic choices of a type of professional regulation, as organised in the proposed Article 9 of the draft Directive, should therefore have no relevance.

  • Protective measures in face of uncertainty cannot be criticized :

“Fourthly, it should be borne in mind that, where there is uncertainty as to the existence or extent of risks for public health, a Member State can take protective measures without having to wait until the reality of those risks becomes fully apparent.” 

ref : Joined Cases C-570/07 and C-571/07 Blanco Perez [2010] ECR I-4629 §74

  • Restrictions to the freedom of services can be founded by the nature of Health services : 

“It follows from the case-law that two objectives may, more precisely, be covered by that derogation in so far as they contribute to achieving a high level of protection of health, namely the objective of maintaining a balanced high-quality medical or hospital service open to all and the objective of preventing the risk of serious harm to the financial balance of the social security system (…)

As regards the first of those objectives, Article 46 EC allows the Member States, in particular, to restrict the freedom to provide medical and hospital services in so far as the maintenance of treatment capacity or medical competence on national territory is essential for the public health, and even the survival, of the population.” 

ref : Case C-169/07 Hartlauer [2009] ECR I-1721 §47-48

  • A Health service provider is not governed by the only chase of profits :

“It is undeniable that an operator having the status of pharmacist pursues, like other persons, the objective of making a profit. However, as a pharmacist by profession, he is presumed to operate the pharmacy not with a purely economic objective, but also from a professional viewpoint. His private interest connected with the making of a profit is thus tempered by his training, by his professional experience and by the responsibility which he owes, given that any breach of the rules of law or professional conduct undermines not only the value of his investment but also his own professional existence.

Unlike pharmacists, non-pharmacists by definition lack training, experience and responsibility equivalent to those of pharmacists. Accordingly, they do not provide the same safeguards as pharmacists.”

ref : Case C-531/06 Commission v Italian Republic [2009] ECR I-4103 §61-62

The list of non-economic criteria developed by the case-law goes on ; it is much longer.

Not even mention of it is made in the draft Directive (Article 5).

Recital 12 states only that “in order to ensure a high level of protection of public health, Member States should enjoy a margin of discretion to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved

In this situation the legislator faces several questions :

-How can regulated professions from the Health sector be correctly assessed with the draft Directive’s tools if it is done in ignorance of the settled case-law’s comments and explanations?

-How can the proportionality test of the draft Directive run mainly by an economic approach and undertaken by the Member States remain compatible with the proportionality test undertaken by the European Court of Justice with a much more balanced approach of economic and non-economic interests?

-Should, as a solution to this situation, Health regulated professions be excluded from the draft Directive’s scope of application?

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