16.5.2009

Official Journal of the European Union

C 113/23

(Case C-89/09)

2009/C 113/45

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: G. Rozet and E. Traversa, Agents)

Defendant: French Republic

Form of order sought

—Declare that, by limiting to a maximum of one-quarter the shares and therefore the voting rights in a Société d’Exercice Libéral à Responsabilité Limitée (limited liability company formed by persons carrying on a professional activity) operating medical laboratories which can be held by persons who are not biologists and by prohibiting holdings of capital in more than two companies established in order jointly to operate one or more medical laboratories, the French Republic has failed to fulfil its obligations under Article 43 of the EC Treaty;

—Order the French Republic to pay the costs.

Pleas in law and main arguments

The Commission submits two pleas in law in support of its action, alleging infringement of Article 43 of the EC Treaty.

By its first plea, the applicant maintains that, by limiting to a maximum of 25% of the authorised capital of Sociétés d’Exercice Libéral à Responsabilité Limitée operating medical laboratories the shares held by shareholders not carrying on a professional activity, the national legislation restricts unduly the freedom of establishment guaranteed by the Treaty. The objective of protection of public health, referred to by the defendant as a justification, could be achieved by measures less restrictive than those at issue in the present case. The Commission claims in that regard that, while it seems justified to require that medical analyses be carried out by competent staff with the appropriate professional qualifications, to require such qualifications for the mere holding of shares in or right to operate medical laboratories seems on the other hand disproportionate with regard to the objective pursued.

By its second plea in law, the Commission criticises the general prohibition on persons not carrying on a professional activity from holding capital in more than two companies established in order jointly to operate one or more medical laboratories. The objective put forward by the defendant of maintaining the decision-making power and the financial independence of the persons carrying out professional activities in the sector and the need to ensure a uniform distribution of the laboratories throughout the national territory do not justify the restrictive national measures.