Medical professions. The general interest justifies a restriction on the freedom of establishment
(B2 archives) Advocate General Paolo Mengozzi recommended that the Court reject the Commission's action for failure to fulfill obligations against Germany on the transitional regime put in place for the authorization of contracted psychotherapists (conclusions of June 28, C-456/05).
The European Commission reproached Germany for having violated the principle of freedom of establishment by reserving only to psychotherapists who exercised their activity within the framework of the compulsory German health insurance funds the possibility of obtaining an approval or an authorization to exercise, derogating from the quota rules in force, and not taking into account the comparable or similar professional activity carried out by psychotherapists in other Member States.
In terms of form, the breach was over on the date of the reasoned opinion. For Paolo Mengozzi, “the Commission cannot bring an action for failure to fulfill obligations, under pain of its inadmissibility, with the aim of establishing a breach of Community law which ceased before the expiry of the period set in the reasoned opinion”. Article 226 indicates that the Commission may take action to establish "with a view to their termination" the existence of shortcomings. No when it stopped.
Admittedly, the Advocate General considers that the Commission retains the possibility of bringing an infringement action for a specific infringement of Community law; declare the appeal inadmissible "would be tantamount to rewarding the fact that the breach has been 'consummated', even though the Commission could not act before it ceased to exist and thus prevent the breach from producing effects". But such is not the case here according to Paolo Mengozzi.
On the substance, the Advocate General considers that the Commission's action is not justified. Admittedly, there is a clear restriction on the freedom of establishment. But he feels there is a “compelling reason of general interest” justifying this restriction. First of all, as the European Commission does not dispute, the transitional German legislation aims "to allow psychotherapists who, in the past, have established a practice in Germany to continue, for reasons of protection of acquired rights and that of legitimate expectations, the exercise of their activity despite the observed excess supply". Next, their purpose is to guarantee that only a limited number of psychotherapists can claim a right to obtain a derogatory authorisation, which corresponds to the objective – set in the quota system – namely: the prevention of overcapacity and the guarantee a uniform offer of psychotherapeutic care to insured persons under the compulsory health insurance scheme in the federal territory.
