In the Applicants’ view, it is wrongly assumed that simply because Article 36(3) of Directive 2005/36/EC concerning recognition of professional qualifications only mentions dentists, then there should be just one oral care profession – that of dentists. This wrong assumption leads to serious prejudice to all European Union nationals in general and to Europe’s “most vulnerable populations”, those who cannot afford a visit to a dentist but can afford visiting a denturist.
The Applicants are in no way contesting the Directive’s guiding principle that “dental practitioners are generally able to gain access to and pursue the activities of prevention, diagnosis and treatment of anomalies and diseases affecting the teeth, mouth, jaws and adjoining tissue” (Article 36 (3) of the Directive). Their contestation is based on the undeniable fact that denturists do not perform any invasive procedures; they simply prepare dental appliances for patients. The appliance is removable by the patient himself or herself if and when he or she experiences any pain or discomfort. This is the easiest course of action. Then, if the appliance is defective, it is either adjusted by the denturist or replaced. Opposing and, worse still, eliminating the profession of denturist from the oral care scene on such flimsy grounds is unacceptable. This is quite the opposite of what has happened in Canada where the Prime Minister and the Chief Dental Officer commended the activities of Denturists in Canada.
Adopting reasonable measures intended to regulate a profession is one thing, but rejecting a profession simply because another profession sees it as an obstacle in its resolve to monopolise all the turf covered by oral health care runs counter to the principles behind the rights guaranteed by the Charter of Fundamental Rights and defeats the essence of these guaranteed fundamental rights. The issue here is not the wide competence pertaining to the Member States under Article 168 (7) TFEU, but the enjoyment of the freedom of establishment and freedom to provide services, without any risk to public health care.
The refusal by the Superintendent of Public Health in Malta to recognise and allow the exercise of the profession of clinical dental technologist in Malta is without any doubt at all a contravention of the Fundamental Freedoms incorporated in the Treaty of the European Union, in particular the freedom of establishment of nationals of other Members States and the freedom of cross-border provision of services between Member States. The conduct of the Maltese Superintendent of Public Health does not allow European Union nationals – including potential Maltese nationals – who possess the appropriate qualifications which they gained in another Member State, to exercise the profession of clinical dental technologists in Malta. There are no two ways about it: this conduct infringes European Union law.
The argument based on public interest is absolutely unfounded because, as stated earlier, the only consequence in the eventuality that a dental appliance turns out to be defective would be that the defective denture would have to be modified or replaced – and this without any risk at all to the patient. This is an incontrovertible truth. The third question posed by the referring Maltese Civil Court readily comes to mind: “Can the prohibition by the Maltese health authorities, which is being contested in the present case, serve to ensure the aim of having a high level of public health protection, when any defective denture can be replaced without any risk to the patient?” The answer is self-evident. There would be no ensuing risk to public health if denturists were to be allowed to practise their profession in Malta as a regulated profession.
The argument put forward by the Superintendent of Public Health for not allowing a Single Market micro player (the denturist) to function and flourish in Malta, namely, that Chapter 464 of the Laws of Malta does not include clinical dental technologists in the list of professions, is a feeble one. Such a lame argument cannot be relied on before the Court of Justice of the European Union. When this Court ruled in the Mc Quen case that certain activities should be reserved for qualified professionals, it was dealing with eye treatment not dentures.
Denturists do not perform invasive procedures and they do not make diagnosis. Canadian denturists shine like a beacon and irk the Dentists’ lobby because denturists are also capable of referring cases regarding treatment by dentists to the dentists. Patients manifesting pathology are not diagnosed by dentists because dentists are bound to refer such patients with pathological problems to pathologists.
The true reason why dentists oppose denturists is one related to turf: they do not like anyone entering their preserve and engaging in the sphere of activities which they regard as their personal territory. Their lobby is highly influential. Their aim is to prevent direct access of patients to denturists by putting pressure to have regulations that make it compulsory for the patient to visit the dentist before going to a denturist for a dental appliance.