Commission of the European Communities v Kingdom of Belgium.

• Jurisdiction: European Union
• Celex Number: 61985CC0221
• ECLI: ECLI:EU:C:1986:456
• Court: Court of Justice (European Union)
• Docket Number: 221/85
• Procedure Type: Recours en constatation de manquement - non fondé
• Date: 02 December 1986

61985C0221

Opinion of Mr Advocate General Lenz delivered on 2 December 1986. - Commission of the European Communities v Kingdom of Belgium. - Failure of a State to fulfil its obligations - Infringement of Article 52 - Right of establishment in relation to clinical biology laboratories. - Case 221/85.

European Court reports 1987 Page 00719

Opinion of the Advocate-General

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Mr President,

Members of the Court,

A - 1 . In the proceedings in which I am giving my opinion today, the applicant, the Commission of the European Communities, complains that the defendant, the Kingdom of Belgium, by adopting Royal Decree No 143 of 30 December 1982 on the reimbursement of costs by the Belgian national sickness insurance scheme in respect of services provided in the field of clinical biology ( hereinafter referred to as "laboratory services "), has failed to fulfil its obligations under Article 52 of the EEC Treaty and has thus infringed the principle of the freedom of establishment .

2 . The decree renders more difficult the establishment of laboratories from other Member States by providing that their costs will not be reimbursed by the Belgian national sickness insurance scheme . The Commission contests in particular the provision of the decree which prescribes the organizational form in which laboratories must be operated if their costs are to be covered by the sickness insurance scheme .

3 . The provisions of Article 3 ( 3 ) and ( 4 ), which are relevant in the present proceedings, provide that the laboratories must be operated either :

"3 . by one or more persons entitled to provide services in the field of clinical biology who do in fact carry out analyses in the laboratory and who are not prescribing doctors; or

4 . by a legal person governed by private law, except such non-profit-making legal persons as fall within paragraph ( 7 ) below, whose members, partners or directors, as the case may be, are exclusively persons falling within paragraph ( 3 ) above ...".

4 . If a laboratory does not comply with these requirements, the laboratory services carried out by it are not reimbursed by the national sickness insurance scheme .

5 . Article 7 of the decree provides that if the owner of the business premises or the equipment is not the person by whom the laboratory is operated, the amount payable by the latter may only be a lump sum equal to the normal amount payable for the hire, depreciation or leasing on the basis of the value of the capital investments .

6 . A number of foreign firms requested a Brussels court to suspend the operation of the decree . When their application was refused, they brought an action for the annulment of the decree before the Conseil d' Etat, which has not yet given its decision . Finally, they contacted the Commission which, in 1983, initiated a procedure against Belgium for failure to fulfil its obligations under the Treaty .

7 . As originally drafted, Article 11 of the decree provided that the conditions laid down in Article 3 were to be fulfilled at the latest within seven months of the publication of the decree in the Belgian Official Journal . That time-limit has been extended on several occasions . Under Article 21 of Law No 85/101 of 22 January 1985, the Government is now authorized to fix the time-limit, but has not yet exercised that power .

Conclusions of the parties

8 . The applicant claims that the Court should :

1 . Declare that, by providing that reimbursement may be made in respect of services in the field of clinical biology carried out in laboratories operated by a legal person governed by private law only if the members, partners or directors thereof are natural persons authorized to carry out medical analyses, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty, in particular Article 52 thereof;

2 . Order the Kingdom of Belgium to pay the costs .

9 . The defendant contends that the Court should :

1 . Declare the application inadmissible, and, in the alternative, unfounded;

2 . Order the Commission to pay the costs .

10 . The observations of the parties are set out, so far as is necessary, in the framework of the examination of the substance . For the remainder, reference is made to the Report for the Hearing .

B - My view on these proceedings is as follows :

I - Admissibility

11 . No grounds on which the application could be inadmissible have been raised or are otherwise apparent .

II - The substance

12 . At the beginning of...