No less than the Chief Dental Officer, the head of the Public Health Agency of Canada, acknowledged the valid contribution of Canada’s Denturists over a 45-year span, and that is not all. The Prime Minister of Canada Justin Trudeau declared:
“Since it was founded in 1971, the DAC has been the voice of Canadian denturism, diligently representing the best interests of its members while offering valuable opportunities for career development and networking with fellow dental health professionals. ....
I would like to commend the members of the DAC for maintaining high standards of excellence and professionalism in the provision of denture services and patient care.”
Not so in Malta, where dentists have the upper hand, and the profession of denturist is not allowed to exist.
The questions set by the Court
1). To what extent does Article 36(3) of Directive 2005/36/EU of the European Parliament and of the Council of the 7th September 2005, concerning the recognition of professional qualifications (GU 2005, L 255, p. 22), enlisting the activities of the persons who practise in the dentistry profession, provide that certain professional activities of clinical dental technologists that are the subject matter of the dispute in the main proceedings should be considered as being reserved for persons who practise the dentistry profession in the sense of this provision?
Applicants will be the first to acknowledge that the case “Mc Quen v Grandvision” was decided correctly in 2001. In the applicants’ view, the decision remains good law as it was based on sound legal principles. Patient safety should come before anything else. The professional practices encountered in the Mc Quen case were correctly reserved for persons who are qualified ophthalmologists.
Article 36(3) of the Directive was not intended to favour any particular profession in the eventuality that one profession is contesting another, but to ensure that activities that are inherently risky are reserved for qualified persons, only if there is a justification for this. This involves a weighing exercise between the activity or practice under examination and the existence or otherwise of a valid justification to reserve.
The Treaty provisions on freedom of movement for workers are intended to facilitate European Union nationals’ pursuit of occupational activities of all kinds throughout the European Union, and preclude measures which might place such nationals at a disadvantage when they exercise this right conferred on them by the Treaty (C-515/14, 38-39). The attitude adopted by the Maltese health authorities in favour of the Dentists’ lobby to oppose the profession of denturists constitutes a serious obstacle to the freedom of movement for workers, which is, in principle, prohibited by Article 45 of the Treaty (TFEU). Moreover, such a flagrant obstruction cannot be accepted in light of the duty of sincere cooperation and assistance which Member States owe the European Union and which finds expression in the obligation laid down in Article 4(3) TEU to facilitate the achievement of the European Union’s tasks (C-515/14, 43-52). Furthermore, Community Law also protects the freedom to provide services, besides the right to establishment.
The mere fact that a Member State is entitled to make conditions for the exercise of certain practices does not entitle that Member State to seek to impose restrictions and prohibitions without justification. One has to bear in mind that the Articles of the TFEU expressly prohibit national discriminatory measures or lack of proportionality in the way these rights are restricted. In the case Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano (C-55/94, paragraph 37) the Court of Justice ruled:
“It follows, however, from the Court's case-law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it (see Case C-19/92 Kraus v Land Baden-Württemberg  ECR I - 1663, paragraph 32).”