Judgment;Summary — ECLI:EU:C:2021:611
Date: 2021-07-15
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Right of establishment;Internal market - Principles;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: France

summary application and a supplementary statement, 
lodged on 17 June and 17 September 2019 with the Judicial Affairs Secretariat of 
the Council of State, the Conseil national des centres commerciaux (National 
Council of Shopping Centres) is requesting that the Council of State: 
1) annul, on grounds of ultra vires, Decree No 2019-331 of 17 April 2019 on the 
composition and functioning of departmental commercial planning committees 
and applications for commercial operating permits; 
[…] [Or. 3] 
The National Council of Shopping Centres is asserting: 
- that the contested decree is illegal, because it was enacted on the basis of the 
provisions of Article L. 752-6 of the Commercial Code in the wording resulting 
from Article 166 of the Law of 23 November 2018, which are unconstitutional; 
- that Article L. 752-6 of the Commercial Code, as amended by Article 166 of the 
Law of 23 November 2018, and Article R. 752-6 of that code, as resulting from 
Article 4 of the contested decree implementing it, introduce economic test criteria 
that infringe paragraph 5 of Article 49 TFEU and Article 14 of Directive 
2006/123/EC of the European Parliament and of the Council of 12 December 
2006 on services in the internal market; 
- that Article L. 751-2 of the Commercial Code, as resulting from Article 163 of 
the Law of 23 November 2018, and Articles 1 to 3 of the contested decree 
implementing it, infringe paragraph 6 of Article 14 of Directive 2006/123/EC of 
the European Parliament and of the Council of 12 December 2006 on services in 
the internal market, in that they require the presence of recognised experts 
describing the economic fabric on departmental commercial planning committees. 
By a statement of defence lodged on 5 June 2020, the ministre de l’économie et 
des finances (Minister for the Economy and Finance) contends that the action 
should be dismissed. He submits that the pleas in law raised by the National 
Council of Shopping Centres are unfounded. 
[…] 
3. Under no 433921 …[OR:4] 
[Action dismissed] 
Having regard to: 
- […]; 
- the Treaty on the Functioning of the European Union; 
CONSEIL NATIONAL DES CENTRES COMMERCIAUX 
 
3 
- Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market; 
- the Commercial Code; 
[…] 
Whereas: 
1. The claim  …lodged under … No 431724 by … the National Council of Shopping 
Centres … [has] been brought against the Decree of 17 April 2019 on the 
composition and functioning of departmental commercial planning committees 
and applications for commercial operating permits. Furthermore, the claim lodged 
under No 433921 [action dismissed]. 
On the forms of order seeking the annulment of the contested decree[Or. 5] 
[…] 
2. […]  
3 […] 
[Plea of inadmissibility raised by the Minister for the Economy and Finance … — 
Proper consultation of the Council of State — No effect on the question referred 
for a preliminary ruling] 
With regard to the articles relating to departmental commercial planning 
committees 
4. Article L. 751-2 of the Commercial Code determines the composition of 
departmental commercial planning committees. In its wording resulting from 
Article 163 of the loi du 23 novembre 2018 portant évolution du logement, de 
l’aménagement et du numérique (Law of 23 November 2018 on development of 
housing, planning and the digital economy), that text requires that departmental 
commercial planning committees be composed, in addition to the elected officials 
they designate and recognised experts in the sphere of consumption, sustainable 
development and local planning, as follows: ‘II. In departments other than 
Paris, … 3. Of three recognised experts describing the economic fabric: one 
appointed by the chambre de commerce et d’industrie (chamber of commerce and 
industry), one appointed by the chambre de métiers et de l’artisanat (chamber of 
skilled trades and crafts), and one appointed by the chambre d’agriculture 
(chamber of agriculture). … / III.- In Paris, … 3. Of two recognised experts 
describing the economic fabric: one appointed by the chamber of commerce and 
industry and one appointed by the chamber of skilled trades and crafts. …’. It also 
states that: ‘… The committee will hear any person who could provide 
clarification for its decisions or opinions. Although they will not take part in 
voting, the experts appointed by the chamber of commerce and industry and the 
REQUEST FOR A PRELIMINARY RULING OF 15. 7. 2020 — CASE C­325/20 
 
4  
chamber of trade and crafts will review the situation of the economic fabric in the 
relevant catchment area and the impact of the project on that economic 
fabric. …’. Articles 1 to 3 of the contested decree implement these new 
provisions. Article 1 amends Article R. 751-1 of the Commercial Code in order to 
set the duration of the terms of office of the recognised experts describing the 
local economic fabric. Article 2 amends Article R. 751-3 of the Commercial 
Code, which determines the composition of departmental commercial planning 
committees in the specific case where the catchment area for a commercial 
infrastructure project exceeds the boundaries [Or. 6] of a single department, by 
making the adaptations made necessary by the inclusion on the committee of 
recognised experts describing the local economic fabric. Article 3 amends Article 
R. 751-4 of the Commercial Code to extend the obligation to declare functions 
exercised and interests held to the committee members who do not have voting 
rights, namely to the recognised experts describing the local economic fabric. 
Articles 10 and 11 amend Articles R. 752-15 and R. 752-16 of the Commercial 
Code to provide that the recognised experts describing the local economic fabric 
are not taken into account when calculating the quorum. 
5. Article 14 of Directive 2006/123/EC of the European Parliament and of the 
Council of 12 December 2006 on services in the internal market lays down that; 
‘Member States shall not make access to, or the exercise of, a service activity in 
their territory subject to compliance with any of the following: … 6) the direct or 
indirect involvement of competing operators, including within consultative bodies, 
in the granting of authorisations or in the adoption of other decisions of the 
competent authorities, with the exception of professional bodies and associations 
or other organisations acting as the competent authority; this prohibition shall 
not concern the consultation of organisations, such as chambers of commerce or 
social partners, on matters other than individual applications for authorisation, 
or a consultation of the public at large …’. The [applicant submits], by way of an 
exception, that the provisions added to Article L. 751-2 of the Commercial Code 
by the Law of 23 November 2018 infringe the provisions of Article 49 TFEU and 
those of Article 14(6) of Directive 2006/123/EC and that, therefore, Articles 1 to 3 
of the contested decree are unlawful. 
6. By virtue of Article L. 751-1 of the Commercial Code, departmental commercial 
planning committees provide opinions, which represent assent, on applications for 
commercial operating permits. The response to the plea raised by the [applicant[ 
depends on establishing whether Article 14(6) of Directive 2006/123/EC of 
12 December 2006 should be interpreted in the sense that it permits the presence, 
on a collegiate body responsible for delivering an opinion on the issuance of a 
commercial operating permit, of recognised experts describing the local economic 
fabric, whose role is limited to merely presenting the situation of the economic 
fabric in the relevant catchment area and the impact of the project on that 
economic fabric, without taking part in the voting on the permit application. This 
question, which is key to the outcome of the dispute, in that it deals with the 
legality of Articles 1 to 3 of the Decree of 17 April 2019, presents a serious 
difficulty. There are therefore grounds to refer the question to the Court of Justice 
CONSEIL NATIONAL DES CENTRES COMMERCIAUX 
 
5 
of the European Union in application of Article 267 TFEU and, pending a ruling 
from that Court, to stay proceedings on application No 431724, in so far as it 
seeks the annulment of Articles 1 to 3 of the decree under appeal. 
[…] [Or. 7] […] 
[…] [Or. 8] 
[…] [Or. 9] […] [Or. 10] […] 
[Developments on the articles relating to the authorisation of independent bodies 
and applications for commercial operating permits — No effect on the question 
referred for a preliminary ruling] 
D E C I D E S: 
[…] [Or. 11] 
Article 2: The court hereby issues a stay of proceedings on the forms of order 
sought by application No 431724 of the National Council of Shopping Centres, in 
so far as it seeks the annulment of Articles 1 to 3, 10 and 11 of Decree No 2019-
331 of 17 April 2019 and seeks a form of order under Article L. 761-1 of the code 
de justice administrative (Code of Administrative Justice), pending a ruling by the 
Court of Justice of the European Union as to whether Article 14(6) of Directive 
2006/123/EC of the European Parliament and of the Council of 12 December 
2006 on services in the internal market must be interpreted as meaning that it 
permits the presence, on a collegiate body responsible for issuing an opinion on 
the granting of a commercial operating permit, of a recognised expert describing 
the local economic fabric, whose role is limited to merely presenting the situation 
of the economic fabric in the relevant catchment area and the impact of the project 
on that economic fabric, without taking part in the vote on the permit application. 
[…] [Or. 12] 
[…]