SEPARATE OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

l. I find myself in disagreement with t he Court's reasoning as regards two paragraphs in the judgment and item 2 of the operative provisions.

2. With regard to paragraph 93 of the j udgment, while I agree that the medical profession counts among the traditional liberal professions in the Federal Republic of Germany; that, even under the national health scheme, the medical profession is not a public service; that the doctor, who is free to practise or not, provides treatment for his patients on the basis of a contract; and that the medical practitioner's activity has a private character, I still feel obliged to point out that:

(a) according to paragraph 1 of Ar ticle 1 of the Federal Act, the medical practitioner shall have the care of the health of each individual and of the community as a whole; under paragraph 2, he exercises a liberal profession and not a trade or business (paragraph 20 of the judgment);

(b) in order to be able to pr actise on a permanent basis, an authorisation issued by the appropriate services of the Länder is required (Articles 2 para. 1 and 12 of the Federal Act, Article 35 of the Regulations).  This authorisation is granted on request if the person concerned:

l. ...

2. has not been guilty of behavio ur showing that he is unfit or unreliable to exercise the profession,

3. ...

4. ... (paragraph 20 of the judgment);

(c) an authorisation that has been iss ued must be withdrawn if one of those conditions either was not satisfied at the time of the grant or ceases to be met afterwards (Article 5 of the Federal Act; paragraph 20 of the judgment);

(d) although the medical profession al so has the purpose of providing an income, its primary aim is disinterested, namely rendering assistance to mankind (paragraph 22 of the judgment).

Bearing these quotations in mind and re membering the Hippocratic Oath, which includes a promise by the doctor that: "With purity and with holiness I will pass my life and practise my art ...  While I continue to keep this oath unviolated, may it be granted to me to enjoy life and the practice of the ar t, respected by all men, in all times. But should I trespass and violate this oath, may the reverse be my lot!" - I am bound to conclude that there is a total difference between, firstly, the running of a clinic (a trade or business; paragraph 21 of the judgment) and, secondly, exercise of the medical profession, in which the spiritual el ement takes precedence over the material element, since "the duties of dignity, disinterestedness and independence which members of the liberal professions must observe apply very strictly to doctors" (J. Savatier , La profession libérale , Etude juridique et pratique , Paris, L.G.D.J., 1947, quoted in the Encyclopédie Dalloz , III, 425).

3. With regard to paragraph 95 of the judgment, I cannot agree with the Court in its view of the decision t o withdraw the authorisation to practise.  I should like to point out that I agree with paragraph 94 and 95 on the decision to withdraw the authorisation to run the clinic.

In my view, the right called in qu estion by the withdrawal of the authorisation to practise is a public, and not a civil, right.

I do not believe that a distincti on can be made, under Article 6 (art. 6) of the Convention, between the grant and the withdrawal of an authorisation.

It must be remembered that the admi nistrative proceedings were not concerned directly with one or more specific private-law relationships between Dr. König and his patients, but with his general suitability to practise as a doctor.

Since public law is not concerned with actions but only with the aims which the person in question claims to be pursuing (G. Balladore Pallieri, La doctrine de l' État , volume II - Portuguese edition, page 213), since the withdrawal of the authorisation to practise was not intended to regulate specific relationships between Dr. König and his clients - the latter being a matter for private law - but chiefly to safeguard the health of the community as a whole, and since the administrative authorities found that Dr. König no longer fulfilled certain conditions of public order, lying outside the scope of private law, I would say, unlike the Court, that Article 6 para. 1 (art. 6-1) is not applicable to the proceedings relating to the withdrawal of the authorisation to practise.

4. I feel obliged to accept the decisi on of the majority of the Court that Article 6 para. 1 (art. 6-1) is applicable to the proceedings relating to the withdrawal of the authorisation to practise, and to vote on its application with regard to the duration of the proceedings.

Disagreeing with the Court on the fir st question - the applicability of Article 6 para. 1 (art. 6-1) of the Convention -, I agree with the final decision and the arguments used to support it.

I would, however, like to indicate ex pressly that I would have voted for non-violation of the Convention, on the ground of non-applicability of Article 6 para. 1 (art. 6-1) to the proceedings relating to the authorisation to "practise", if there had not been a prior decision on applicability.