OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 1 June 2017 (1)
Case C‑125/16
Malta Dental Technologists Association,
John Salomone Reynaud
v
Superintendent tas-Saħħa Pubblika,
Kunsill tal-Professjonijiet Kumplimentari għall-Mediċina
(Request for a preliminary rulingfrom the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court, Malta))
(Reference for a preliminary ruling — Recognition of professional qualifications — Regulated profession — Clinical dental technologist — Conditions governing the practice of a professional activity — Obligation to practise under the supervision of a dentist — Freedom of establishment — Obstacle — Justification — Protection of public health — Principle of proportionality)
Introduction
1. Clinical dental technologists (‘CTDs’), or denturists, are experts in the field of dental appliances, including the crafting of dentures or false teeth, and other ancillary services such as repairs, additions and modifications to dentures and prostheses. In the Member States which recognise that profession, (2) CDTs practise independently and are able to have direct contact with patients.
2. Between 2009 and 2012, at least three CDTs submitted requests for authorisation to practise in Malta. Those requests were rejected, as Malta recognised only the profession of dental technician as a profession complementary to medicine, (3) and not the profession of CDT. The Maltese authorities therefore proposed that it should register the CDTs as dental technicians. Registered as such, they would then have had to practise on the same terms as dental technicians, that is to say, under the supervision of a dentist, as provided for in the national legislation. Being of the view that that situation would be contrary to the obligations imposed on Member States by Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (4) and to the principle that freedom of establishment entails the possibility for any professional trained in a Member State to establish himself and practise his professional activity in the other Member States of the European Union according to the conditions laid down by the Member State in which he was trained, the plaintiffs in the main proceedings, the Malta Dental Technologists Association and Mr Reynaud, who’s a CDT, requested the referring court to order the Maltese authorities to register the CDTs, recognised as such in other Member States of the European Union, and to permit them to practise their profession in Malta without having to be supervised by a dentist.
3. It was in those circumstances that the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court, Malta) decided to stay proceedings and, by decision for reference received at the Registry on 29 February 2016, submitted the following questions to the Court for a preliminary ruling:
‘(1) Is the prohibition by the Maltese health authorities, or their refusal to grant recognition to the profession of [CDTs] / denturists, whereby, despite the absence of discrimination in law, individuals from other Member States who have made an application in this respect are in practice precluded from establishing their profession in Malta, incompatible with the principles and the legal provisions regulating the creation of the single market, in particular those resulting from Articles 49, 52 and 56 TFEU, in a situation where there is no risk to public health?
(2) Should [Directive 2005/36] be applied with respect to [CDTs] in view of the fact that, should a denture prove to be defective, the only consequence would be that the defective dental appliance would have to be modified or replaced, without any risk to the patient?
(3) Can the prohibition by the Maltese health authorities, which is being contested in the present case, serve to ensure the aim of having a high level of public health protection, when any defective denture can be replaced without any risk to the patient?
(4) Does the way in which [the Maltese health authorities] interpret and enforce Directive [2005/36] with respect to [CDTs] who have applied for recognition by the same Maltese health authorities constitute an infringement of the principle of proportionality?’
Procedure before the Court
4. The present reference for a preliminary ruling has had the advantage of written observations from the Malta Dental Technologists Association, the Kunsill tal-Professjonijiet Kumplimentari ghall-Mediċina (Council of complementary medicine professions), the Maltese, Czech, Spanish, Italian, Austrian and Polish Governments and the European Commission.
5. At the hearing on 2 March 2017, oral observations were submitted by the plaintiffs in the main proceedings, the Maltese and Spanish Governments and the European Commission.
Analysis
6. The objective of the four questions referred to the Court, which I propose to deal with together, is to determine whether a situation in which a host Member State proposes that CDTs trained in another Member State should be registered as dental technicians — the only profession recognised in the host Member State — and be subject to the conditions governing the practice of the profession of dental technician as defined by the host Member State is compatible with EU law.
7. The first stage of the analysis consists in determining which rule of the European Union is applicable. In answer to a question put by the Court at the hearing, the plaintiffs in the main proceedings stated that their request concerned the freedom of CDTs to become established and practise in Malta and that, provided that a profession exists in one Member State, not only that profession, but also the conditions in which it is practised in the Member State in which training was received, should be recognised in the other 27 States. The plaintiffs in the main proceedings thus clearly based their arguments on the fundamental freedoms rather than on Directive 2005/36. However, having regard to the wording of the second and fourth questions for a preliminary ruling, it is appropriate to begin by devoting some argument to that directive.
The application of Directive 2005/36
A profession regulated in the host Member State?
8. Directive 2005/36 applies to ‘all nationals of a Member State wishing to pursue a regulated profession in a Member State, including those belonging to the liberal professions, other than that in which they obtained their professional qualifications’. (5) Regulated profession — which is a concept of EU law (6) — must be understood as ‘a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific professional qualifications; in particular, the use of a professional title limited by legislative, regulatory or administrative provisions to holders of a given professional qualification shall constitute a mode of pursuit’. (7) The concept of ‘professional qualification’, within the meaning of the directive, does not cover all qualifications attested by evidence of formal qualifications, but only those relating to training which is specifically designed to prepare candidates to exercise a given profession. (8)
9. In essence, Directive 2005/36 establishes a system based on two arrangements for the recognition of qualifications: (i) automatic recognition for the regulated professions whose minimum training conditions are harmonised at European level (as, for example, ‘dental practitioners’, (9) more commonly referred to as dentists) and also for certain other regulated professions; and (ii) mutual recognition of qualifications for the other regulated professions, (10) that is to say, those whose training conditions are not harmonised, as in the case of CDTs and dental technicians.
10. The file submitted to the Court contains no clear indication from which it might be concluded that the profession of dental technician is or is not a regulated profession in Malta. It is not shown that access to the profession of dental technician is contingent on having particular professional qualifications or evidence of a formal qualification specifically designed to prepare its holders for the practice of that profession. What is certain, on the other hand, is that that profession is regarded as a profession complementary to medicine and that the profession of CDT does not exist as such in Malta; there is therefore no ‘regulated profession’ existing both in the State in which training was received and in the host State. One condition for the application of Directive 2005/36 therefore appears to be absent.
11. There are two possibilities.
12. Either the fact that CDTs are able to practise without the supervision of a dentist and in direct contact with patients characterises the profession of CDT to such a degree that it must be regarded as a separate profession from that of dental technician, in which case it is clear that Directive 2005/36 is not applicable and that EU law does not require Member States to recognise professions which they do not wish to recognise.
13. Or, on the assumption that, first, the profession of dental technician were, in Malta, a ‘regulated profession’ within the meaning of Directive 2005/36 and that, second, the professions of CDT and dental technician were regarded as the ‘same profession’, (11) still within the meaning of Directive 2005/36, the fact would nonetheless remain that what the problems for the Maltese authorities lie not in the level of qualification required — since the registration of CDTs as dental technicians has been proposed — but in the fact that the profession of dental technician is pursued in collaboration with a dentist. In that regard, I must observe that, contrary to the assertions of the plaintiffs in the main proceedings, Directive 2005/36 is not designed to allow professionals trained in their home State to practise their profession in the host Member State under the conditions determined by the State in which they received their training. Article 4(1) of Directive 2005/36 clearly states that ‘the recognition of professional qualifications by the host Member State allows the beneficiary to gain access in that Member State to the same profession as that for which he is qualified in the home Member State and to pursue it in the host Member State under the same conditions as its nationals’. (12) Working under the supervision of a dentist must be regarded as a condition for the practice of the profession of dental technician in Malta: anyone wishing to be established in Malta as a dental technician must agree to work in collaboration with a dentist. To decide otherwise would amount to forcing a Member State to model the conditions for the exercise of a profession on the — apparently less rigorous — conditions prevailing in other Member States and to making Directive 2005/36 an instrument for circumventing the conditions for the exercise of the regulated professions which have not been harmonised. (13) In fact, those conditions remain, according to the terms of the directive, within the competence of the host Member States, provided that they are not discriminatory and are objectively justified and proportionate. (14)
The question of partial access to the profession of dental practitioner
14. At the hearing before the Court, the question of possible partial access by CDTs to the profession of ‘dental practitioner’ was raised.
15. It will be recalled that Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36 and Regulation (EU) No 1024/12 on administrative cooperation through the Internal Market Information System (15) introduced Article 4f (16) into Directive 2005/36, which authorises the authorities of the host Member State to grant partial access, on a case-by-case basis, to a professional activity when (1) the professional is fully qualified to exercise in the home Member State the professional activity for which partial access is sought in the host Member State; (2) differences between the professional activity legally exercised in the home Member State and the regulated profession in the host Member State as such are so large that the application of compensation measures would amount to requiring the applicant to complete a full programme of education and training; and (3) the professional activity can objectively be separated from other activities falling under the regulated profession in the host Member State. However, partial access may be rejected if such rejection is justified by overriding reasons of general interest, suitable for securing the attainment of the objective pursued, and does not go beyond what is necessary to attain that objective. (17)
16. Is it possible, as the Commission has maintained, to envisage that CDTs might take advantage of that partial access mechanism, in so far as the activity of CDTs corresponds in part to that of dental practitioners? (18) In other words, can it be envisaged that CDTs should be allowed to have partial access to the profession of dentist?
17. I am not convinced that they should, since Article 4f(6) of Directive 2005/36 as amended by Directive 2013/55 provides that that article ‘shall not apply to professionals benefiting from automatic recognition of their professional qualifications under Chapters II, III and IIIa of Title III’. In fact, Section 4 of Chapter III of Title III of Directive 2005/36 as amended by Directive 2013/55 is devoted to dental practitioners. My reading of that article is therefore that, so far as dental practitioners are concerned, there can only be full access to the activities by virtue of (i) the harmonisation of the conditions of training organised by Directive 2005/36 (19) and (ii) the automatic recognition that follows and from which dental practitioners benefit under that directive.
18. It is true that Article 4f(6) of Directive 2005/36 as amended by Directive 2013/55 refers to ‘professionals’ and not to professions. However, Article 36 of Directive 2005/36 gives the impression that the professional activities of dental practitioners are reserved (20) and states that ‘pursuit of the activities of a dental practitioner requires the possession of evidence of formal qualifications referred to in Annex V, point 5.3.2’, (21) before going on to define those activities as ‘activities of prevention, diagnosis and treatment of anomalies and diseases affecting the teeth, mouth, jaws and adjoining tissue’. (22) These activities are envisaged as a whole. The activity of CDTs covers only in part that of dental practitioners and, moreover, those CDTs clearly do not fulfil the conditions laid down in Directive 2005/36 in order to be qualified or to practise as dental practitioners. (23) To recognise the possibility that CDTs could have partial access to the profession of dental practitioner, when the directive establishes a consubstantial relationship between possession of one of the forms of evidence of basic formal qualifications listed in point 5.3.2 of the annex to that directive and the pursuit of the profession of dental practitioner, is to my mind quite contrary to the intention of the EU legislature. Thus, the Court has held that ‘pursuit of the activities of a dental practitioner requires the possession of evidence of basic formal qualifications’. (24) In addition, if the possibility of partial access by CDTs to the activities of dental practitioner were envisaged, that would lead to the creation of a new ‘imperfect’ category of only partial dental practitioners, which does not correspond to any category provided for in the directive, and such a situation is precluded. (25)
19. In any event, recognition of partial access is not an absolute right, as the host Member State may reject it under the conditions laid down in Article 4f(2) of Directive 2005/36 as amended by Directive 2013/55.
Intermediate conclusion
20. It follows from the foregoing analysis that a fundamental doubt remains as to whether Directive 2005/36 is applicable to the main proceedings and the referring court will have to determine whether in Malta the profession of dental technician is a regulated profession within the meaning of Directive 2005/36.
21. On the assumption that the directive is applicable, two separate routes for analysis emerge. Following the analysis carried out on the basis of Article 4 of Directive 2005/36, I concluded that the condition for the pursuit of the profession of dental technician consisting in working under the supervision of a dentist may be deemed compatible with that directive on condition that it is not discriminatory — which is the case — and is objectively justified and proportionate — which remains to be ascertained. Likewise, the analysis carried out by reference to the question of partial access to the profession of dental practitioner led me to conclude that, in any event, partial access may be rejected, provided that the refusal is based on an overriding reason of general interest, is suitable for securing the attainment of the objective pursued and does not go beyond what is necessary to attain that objective.
22. Those two tests are similar to the test which the Court will have to carry out if it examines the situation in the main proceedings by reference to primary law, as I now invite it to do, since, as the Spanish Government emphasised at the hearing, it is clear that the Maltese authorities do not claim that CDTs either do not have sufficient qualifications or have followed training that is insufficient or too different to be able to pursue a regulated profession in Malta. The main proceedings do indeed concern the possibility for CDTs to pursue their profession, if necessary as dental technicians, autonomously, that is to say, without the supervision of a dentist, which comes under freedom of establishment.
Analysis by reference to primary law
23. It is apparent from the file submitted to the Court that the CDTs concerned requested the Maltese authorities to issue an authorisation to pursue their profession in Malta. Given the fact that, according to the plaintiffs in the main proceedings, that profession is characterised by the possibility of maintaining direct contact with patients, the pursuit of the profession of CDT in Malta should reasonably imply that the CDTs are established in Malta: the following analysis will therefore be based, as I have said, on Article 49 TFEU. (26)
24. It is common ground that the pursuit of the profession of dental technician is subject to the condition of working under the supervision of dentists, so that dental technicians do not have a direct relationship with patients. The Court has pointed out that, ‘under the second paragraph of Article 49 EC, freedom of establishment is to be exercised under the conditions which the legislation of the country of establishment lays down for its own nationals. It follows that, where the taking up or pursuit of a specific activity is regulated in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with the conditions of that regulation’. (27) As the profession of dental technician has not been harmonised at EU level, as regards either the conditions for access to that profession or the conditions for its pursuit, the Member States remain competent to define those conditions, in a manner which respects the basic freedoms guaranteed by the Treaty. (28) There can be no doubt that the Maltese legislation which requires that dental technicians work under the supervision of a dentist is capable of rendering the exercise of freedom of establishment less attractive for CDTs. Such a situation can be justified only where there is an overriding reason of general interest, provided that it is appropriate for attaining the objective pursued and does not go beyond what is necessary in order to attain that objective. (29)
25. The Maltese Government relies on the preservation of public health as justification. Since that is an objective that is also pursued by the European Union itself, its legitimacy cannot be called in question. (30) It remains to ascertain whether the condition that dental technicians work under the supervision of a dentist is necessary and proportionate.
26. It must be borne in mind at the outset that, having regard to the pre-eminent position held by public health in the Treaty and the room which the Treaty leaves to the discretion of the Member States, ‘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 as to the need for and proportionality of the provisions adopted’. (31) The Court has repeatedly held that ‘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’. (32) Since that level may vary from one Member State to another, it must be recognised that particular vigilance is required when examining national measures for the protection of public health. (33) Accordingly, it is not sufficient for the plaintiffs in the main proceedings to rely on the fact that the United Kingdom authorises CDTs to practise autonomously.
27. Next, the repeated assertions in the questions for a preliminary ruling that no risk for the health of patients, and therefore for public health, is to be feared if CDTs are permitted to practise their profession in direct contact with their patients, and in complete independence, must be placed in context. (34) In fact, it is apparent from the decision for reference that it was the plaintiffs before the referring court — more specifically the Malta Dental Technologists Association — that drafted the questions and then requested that court to refer them to the Court of Justice. In those circumstances, the lack of risk for public health is not a definitive assertion made by the referring court after it has itself assessed the reality of the situation. The Court may therefore usefully address that issue in its forthcoming judgment.
28. In that respect, the CDTs’ argument consists in maintaining, in essence, that their level of training unreservedly entitles them to pursue their profession autonomously and without risk, having regard to the fact that CDTs do not perform any invasive procedure in patients’ mouths and merely prepare, repair and adjust dental appliances for patients. A badly adjusted or defective denture would cause only discomfort and could be simply removed by the patient himself or replaced by the CTD. CDTs do not make diagnoses, they do not prescribe medical treatment and, where they suspect disease, they are responsible for redirecting the patient to a dentist. Nor is there any scientific evidence that dental appliances or dentures can cause significant harm in the patient’s mouth. Last, if CDTs were allowed to work in direct contact with patients the poorest patients could have access to dental care at a lower cost.
29. The Maltese Government does not endorse those observations and claims that CDTs’ activities and their expertise cover only the mechanical aspects of the treatment of certain anomalies and diseases affecting the teeth and the oral cavity. CDTs are not qualified to carry out the diagnosis required in order to plan treatment of that type, nor are they competent to supervise the maintenance of oral rehabilitation, which can be supervised only by a fully qualified dentist, particularly because there are significant differences in terms of the training that gives access to the profession of CDT. (35) The supply of a dental appliance or a denture is not without risk, since underlying pathologies, which may escape the notice of CDTs, and temporary or permanent damage to the tissues may be caused if that appliance or denture is incorrectly inserted. For example, infection may be caused by an incorrect extraction of the tooth if the root of the tooth under the appliance or denture has not been properly extracted. In addition, complications may be observed in patients treated by chemotherapy or bisphosphonates. A badly positioned denture with poor oral care increases the risk of oral cancers. Periodontal diseases may be caused or exacerbated by the appliance it is badly designed, and thus capable of causing irreversible harm if its positioning, and also the context of which it forms part, are not supervised by a dentist whose training, which is wider and more comprehensive than that of CDTs, enables him to make an overall assessment of the situation, and not just an assessment of its mechanical aspects, as would be made by a CDT. It is not acceptable to rely on the fact that the patient will become aware of the problems connected with his dentures or his dental appliance, and the patient might be referred to a dentist by the CDT only when the disease has already reached an advanced stage. The Maltese Government also makes detailed reference to a number of scientific studies which have attested to what are sometimes the serious consequences of an incorrect insertion or a poor adjustment of a dental appliance inserted in an unhealthy organic context. It rejects the argument that the free exercise of the profession of CDT, without supervision by a dentist, would grant access to dental treatment for the less well-off, claiming that in Malta persons with insufficient income are able to consult a dentist free of charge. Last, the Maltese Government claims that the precautionary principle requires that the protection of public health prevail over economic considerations and that, for the purposes of implementing that principle, the Member States have a wide discretion.
30. Having regard to the fact that the doubts expressed by the Maltese Government are based at least in part on scientific studies which tend to show that its arguments are not mere assertions, and also to the discretion which the Court itself has enshrined in its case-law referred to, in particular, in point 26 of this Opinion, to require CDTs who have qualified in another Member State to practise, in the host Member State which does not recognise that profession as such, under the supervision of a dentist is appropriate for attaining the objective of protecting public health and does not go beyond what is necessary in order to attain that objective. (36)
31. Accordingly, Article 49 TFEU must be interpreted as meaning that national legislation such as that at issue in the main proceedings, which requires that dental technicians pursue their profession under the supervision of dentists, although it is capable of making the exercise of freedom of establishment less attractive for that category of professionals, pursues a legitimate objective of protection of public health, is appropriate for attaining the objective pursued and does not go beyond what is necessary in order to attain it.
Conclusions to be drawn from the analysis by reference to primary law for the analysis of Directive 2005/36
32. As stated above, (37) if the Court should find — quod non — that the main proceedings are governed by Directive 2005/36, the assessment of the compatibility of the situation at issue in the main proceedings with Article 4 of Directive 2005/36 or with Article 4f(2) of Directive 2005/36 as amended by Directive 2013/55 must be carried out on the basis of the same test as that which I have just analysed by reference to Article 49 TFEU.
33. In those circumstances, I propose that the Court should hold, in the alternative, that Article 4 of Directive 2005/36 must be interpreted as meaning that it does not preclude a condition of practising a profession, such as that at issue in the main proceedings, which requires that dental technicians pursue their profession under the supervision of a dentist, on the ground that that condition of practice is objectively justified and proportionate.
34. Last, I propose that the Court should hold, further in the alternative, that Article 4f(2) of Directive 2005/36 as amended by Directive 2013/55 must be interpreted as meaning that it does not preclude, in the context of the main proceedings, partial access by CDTs to the profession of dental practitioner being rejected.
Conclusion
35. Having regard to all of the above considerations, I propose that the Court should answer the questions referred by the Prim’Awla tal-Qorti Ċivili (First Hall of the Civil Court, Malta) as follows:
Primarily:
– Article 49 TFEU must be interpreted as meaning that national legislation such as that at issue in the main proceedings, which requires that dental technicians pursue their profession under the supervision of dentists, although it is capable of making the exercise of freedom of establishment less attractive for that category of professionals, pursues a legitimate objective of protection of public health, is appropriate for attaining the objective pursued and does not go beyond what is necessary in order to attain it.
In the alternative, if the Court should find that the situation is governed by Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications:
– Article 4 of Directive 2005/36 must be interpreted as meaning that it does not preclude a condition of practising a profession, such as that at issue in the main proceedings, which requires that dental technicians practise under the supervision of a dentist, on the ground that that condition of practice is objectively justified and proportionate.
Further in the alternative, if the Court should find that the situation in the main proceedings is governed by Directive 2005/36 as amended by Directive 2013/55/EU of 20 November 2013 amending Directive 2005/36 and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System:
– Article 4f(2) of Directive 2005/36 as amended by Directive 2013/55 must be interpreted as meaning that it does not preclude, in the context of the main proceedings, partial access by clinical dental technologists to the profession of dental practitioner being rejected.