CJEC, 1st chamber, October 3, 1990, No C-54/88

THE COURT (First Chamber)

1 By orders of 8 February 1988 (Case C-54-88 Nino), 9 March 1988 (Case C-91-88 Prandini and Goti) and 6 December 1988 (Case C-14-89 Pierini), which were received at the Court Registry on 19 February 1988, 16 March 1988 and 19 January 1989 respectively, the Preturi (Magistrate' s Courts) in Conegliano, Prato and Pisa each referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Articles 5, 52 and 57 of the EEC Treaty and the General Programme for the abolition of restrictions on freedom of establishment of 18 December 1961 (Official Journal, English Special Edition, Second Series (IX), p. 7), in order to determine whether an Italian law prohibiting the unlawful exercise of the profession of medical doctor was in accordance with Community law.

2 Those questions were raised in three sets of criminal proceedings brought against Eleonora Nino, Rinaldo Prandini, Bruna Goti and Pier Cesare Pierini, who are all Italian nationals and members of the Associazione italiana flussoterapeuti e pranoterapeuti (Italian Flusotherapy and Pranotherapy Association) and who, without authorization to practise as medical doctors, had none the less provided biotherapy and pranotherapy treatment in Italy.

3 Article 348 of the Italian Penal Code makes it a punishable offence to exercise a profession without State authorization in cases where such authorization is required. It appears from the documents before the Court that biotherapy and pranotherapy are treated in Italy as activities coming within the scope of the profession of medical doctor and as such require the issue of a special authorization.

4 On 24 June 1986 Mrs Nino was charged with the offence punishable under Article 348 of the Italian Penal Code on the ground that she had unlawfully exercised the profession of medical doctor by administering treatment involving biotherapy and pranotherapy. Mr Prandini, Mrs Goti and Mr Pierini were charged with the same offence on 3 June 1986.

5 On being brought before the Pretori (Magistrates), the accused contended that the provision of the Penal Code under which they had been charged was contrary to the freedom of establishment. The Pretori thereupon stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

"(1) Does Article 52 of the EEC Treaty, interpreted in conjunction with Article 57 thereof and having regard to the fact that the former is directly applicable in the Member States, impose an obligation on the Member States and consequently on the Italian Government to enact the legislative measures which constitute an essential prerequisite for the adoption of the directives on freedom of establishment which are provided for in the EEC Treaty? Has the Italian Government, by not enacting those measures, failed to fulfil its obligations under Article 5 of the EEC Treaty?

(2) May a Member State which has failed to adopt any rules at all regulating paramedical activities such as biotherapy impose a criminal penalty on a Community national, who is potentially authorized to practise as a biotherapist in other Member States, in respect of an activity (treatment by biotherapeutic methods) which constitutes an offence contrary to law, where that activity is not permitted solely because the Member State has failed to regulate or make provision for it?

(3) If the Council fails to adopt the directives provided for in Article 57 of the EEC Treaty, may that institution, on the basis of Title V of the General Programme for the abolition of restrictions on freedom of establishment, adopt, in order to compensate for the absence of the said directives, measures designed to coordinate the conditions governing the pursuit of the paramedical activities forming the subject-matter of this reference for a ruling on interpretation?"

6 Reference is made to the Report for the Hearing for a fuller account of the facts in the main proceedings, the national and Community provisions at issue, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

7 It should first of all be noted that both Council Directive 75-362-EEC of 16 June 1975 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (Official Journal 1975 L 167, p. 1) and Council Directive 75-363-EEC, also of 16 June 1975, concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (Official Journal 1975 L 167, p. 14) contain provisions relating only to the profession of medical doctor. There is no provision in Community law which regulates the exercise of the paramedical professions here referred to in the main proceedings.

8 The accused contend that the provision of the Italian Penal Code under which they have been charged is contrary to the freedom of establishment. They believe that the effective enjoyment of that freedom, as provided for in Article 52 of the Treaty, cannot be refused to a person subject to Community law solely by virtue of the fact that, with regard to a specific profession, the directives provided for under Article 57 of the Treaty have not yet been adopted. For that reason, and in view of the fact that they are entitled to exercise their profession in other Member States without being authorized to practise as a medical doctor, the criminal proceedings brought against them contravene the principle of freedom of establishment.

9 The Italian Government, supported by the Commission, contends on the other hand that the facts of the main proceedings do not reveal any connection with Community law and that consequently no question of Community law arises. In the alternative, the Italian Government, supported in this regard by the Belgian Government, takes the view that Article 52 of the Treaty, interpreted in conjunction with Article 57 thereof, imposes no obligation whatever on the Member States to regulate the exercise of every professional activity.

10 It is apparent from the documents before the Court that all the accused are Italian nationals who qualified as biotherapists and pranotherapists while residing in Italy and who have been charged under Article 348 of the Italian Penal Code as a result of treatment administered solely within the territory of that Member State. All these factors demonstrate that the main proceedings concern situations which are purely internal to a Member State.

11 As the Court stated in its judgment in Case 204-87 Bekaert [1988] ECR 2029, the absence of any element going beyond a purely national setting in a given case means, in matters of freedom of establishment, that the provisions of Community law are not applicable to such a situation.

12 The answer to the questions posed by the Pretori of Conegliano, Prato and Pisa must therefore be that the provisions of the EEC Treaty on freedom of establishment do not apply to purely internal situations in a Member State such as a situation where the nationals of a Member State engage within its territory in a self-employed activity in respect of which they cannot rely on any previous training or experience acquired in another Member State.

Costs

13 The costs incurred by the Italian and Belgian Governments and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national courts, the costs are a matter for those courts.

On those grounds,

THE COURT (First Chamber)

in answer to the questions referred to it by the Pretori di Conegliano, Prato and Pisa, by orders of 8 February, 9 March and 6 December 1988, hereby rules: The provisions of the EEC Treaty on freedom of establishment do not apply to purely internal situations in a Member State such as a situation where the nationals of a Member State engage within its territory in a self-employed activity in respect of which they cannot rely on any previous training or experience acquired in another Member State.