Brussels, 02/06/2010 (Agence Europe) - Delivering his opinion on Wednesday 2 June in case C-89/09, which opposes the Commission and France over ownership and shareholding in medical laboratories, the advocate general decided that only one of the two complaints levelled by the Commission against France was justified (see Official Journal C113 of 16 May 2009).
He decided that the ban imposed by French law on natural persons and corporate bodies with the necessary professional qualifications to hold capital in more than two companies established in order jointly to operate one or more medical laboratory infringes freedom of establishment. While France argued that these restrictions were needed to retain the decision-making powers and financial independence of the laboratories and also to ensure they were evenly spread throughout the country, the advocate general upheld the Commission argument which took the view that this ban restricted partnership possibilities, including with players from other member states.
However, the advocate general recommended that the Court should not consider contrary to Article 43 of the EC Treaty those provisions in the French law of 1990 which limit to a maximum of 25% the shares and, therefore, the voting rights which can be held by persons, who are not biologists, in limited liability companies formed by persons carrying on a professional activity (SELARL) established to operate jointly one or more laboratories. He decided that the text at issue provided for the possibility of broader investment of external capital, held by non-biologists (up to 49%) in laboratories operated by companies set up as limited partnerships with share capital. France argues that these restrictions can be justified by the need to protect public health and seek to avoid the situation where a biologist employed by a laboratory, in following his/her employer's instructions, is not forced to put the laboratory's economic interests above public health requirements. The Commission, on the other hand, believes these restrictions to be disproportionate with the objective sought, which, it says, could be achieved through less restrictive measures. (F.G./transl.rt)