Greek practice: taking your country's rules across the EU

Dr Konstantinides was a Greek surgeon. Most of the time, he practised in Athens. But a couple of days a month he went to a clinic in Darmstadt in Germany, where he carried out some highly specialist operations.

He charged more than a local German doctor would have been permitted to charge. The local medical association wanted to discipline him for that, and for referring to the clinic as an "institute" on his website, which apparently exaggerated its importance in a way that the association found "unprofessional".

It is not unusual nowadays for professionals to travel, providing services on a temporary basis away from home. How far should they be subject to local regulations? Directive 2005/36 has something to say about this. Article 5 says that member states must not restrict the ability of a professional to provide services "for any reason relating to professional qualifications". In other words, they cannot insist that a doctor re-qualify just in order to carry out one or two operations. But it also says that the service-provider is subject to the professional rules "which are directly linked to professional qualifications, such as the definition of the profession, the use of titles, and serious professional malpractice". Quite what this meant was controversial; as Advocate General Cruz Villalón said, the provision was a "source of some perplexity" and it was not clear what sorts of rule it applied to.

Too remote

The question that the ECJ was asked in Case C-475/11 Konstantinides (12 September 2013) was whether the German rules relating to advertising and fees were binding on Dr Konstantinides under that provision. The ECJ said they were not, because the directive doesn't automatically make all professional rules applicable, only those which are linked to the actual practice of the profession concerned, and designed to achieve consumer protection. The ECJ did not think that rules about what you can charge or how you advertise were sufficiently closely linked to these things. They were not about protecting patients' health and the quality of medical care, and were thus too remote from the concerns of Article 5.

That did not mean, however, that Dr Konstantinides was home free. One might think that in specifying what rules a professional is obliged to satisfy, the directive implicitly suggested that those were the only relevant rules. Not so. The ECJ pointed out that Germany remained free to apply other rules so long as they were not discriminatory, and any restriction they imposed was justified in the public interest. Rules about maximum fees could be restrictive if they did not have enough flexibility, and rules about advertising could be restrictive if they did not allow adequate opportunities for promotion. But it was left to the German court to decide whether the restrictions were justified in the public interest.

Unavoidable obstacle

No doubt one should be sceptical about the tendency of professional rules to operate to enforce a closed shop rather than in the public interest. But Konstantinides shows that the ECJ also understands that professionals cannot simply expect to carry their "home rules" around with them, like a snail carries its shell. The mere fact that different states have different rules is in some ways an obstacle to a single market; but it is unavoidable. Non-discriminatory regulation remains permissible, even though the differences this creates require professionals to understand the local rules of the places where they are going to provide services. SJ