Order;Information — ECLI:EU:C:2024:564
Date: 2024-06-25
Language of the case: French
Court formation: Sixth Chamber
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling - inadmissible
Origin: France

Translation C-401/23 – 1 
Case C-401/23 
Request for a preliminary ruling 
Date lodged:  
30 June 2023 
Referring court:  
Tribunal Judiciaire de Metz (France) 
Date of the decision to refer:  
26 May 2023 
Applicant:  
Caisse autonome de retraite des chirurgiens-dentistes et des sages-
femmes (CARCDSF) 
Defendant:  
E … D … 
  
REQUEST FOR A PRELIMINARY RULING 
submitted to the 
COURT OF JUSTICE OF THE EUROPEAN UNION 
26 May 2023 
Referring court: 
Tribunal judiciaire de METZ, pôle social (Court of Metz, social division, France) 
[...] 
Parties before the court: 
Applicant: CAISSE AUTONOME DE RETRAITE DES CHIRURGIENS-
DENTISTES et des SAGES-FEMMES (CARCDSF)- [Independent Retirement 
Fund of Dental Surgeons and Midwives] [...] PARIS [...] 
Defendant: Mr E … D …, residing in Moselle [...] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 26. 5. 2023 – CASE C-401/23 
 
2  
1 Facts of the dispute in the main proceedings 
1.1 Mr E … D … is a dental surgeon practising on French territory, in Moselle 
[...]. 
1.2 As such, he is subject, pursuant to Article L 111-1 of the code de la sécurité 
sociale (Social Security Code), to an obligation to join and to pay 
contributions to the CARCDSF for the social security pension scheme. 
1.3 Mr E … D … contests that obligation and has not paid any compulsory 
contributions in respect of 2019 or 2020. 
1.4 The CARCDSF sent Mr E …D … letters of formal notice to pay the sums 
corresponding to the affiliation obligation followed by two demands for 
payment. 
1.5 Mr E … D … lodged an objection to those demands and brought the matter 
before the referring court. 
1.6 Mr E … D. submits that the national law at issue is contrary to EU law in 
relation to the freedom to provide services, and requests the referring court 
to ask the Court of Justice of the European Union for a preliminary ruling. 
2 Provisions applicable to the dispute 
2.1 Article 56 [first and second paragraphs] TFEU which provides [...]: Within 
the framework of the provisions set out below, restrictions on freedom to 
provide services within the Union shall be prohibited in respect of nationals 
of Member States who are established in a Member State other than that of 
the person for whom the services are intended. The European Parliament 
and the Council, acting in accordance with the ordinary legislative 
procedure, may extend the provisions of the Chapter to nationals of a third 
country who provide services and who are established within the Union. 
2.2 Article L 111-1 of the Social Security Code provides as follows: 
Social security is based on the principle of national solidarity. 
It covers, for any person working or residing in France in a stable and lawful 
fashion, costs relating to sickness, maternity and paternity, as well as family and 
self-sufficiency costs. 
It guarantees workers against risks of any kind likely to reduce or to eliminate 
their income. That guarantee operates through the affiliation of the individuals 
concerned to one or more compulsory schemes. 
It covers health costs, support for self-sufficiency, the provision of social 
insurance benefits, in particular old-age benefits, the provision of benefits relating 
to accidents at work or occupational diseases and the provision of family benefits 
CARCDSF 
 
3 
covered by that code, subject to the provisions of international agreements and EU 
regulations. 
3 GROUNDS of the request for a preliminary ruling 
3.1 The organisation of the functioning of the social security system, in the 
present case retirement and pension schemes, falls under the competence of 
European Union Member States, in accordance with Article 153 TFEU, and 
the French State can therefore lay down in national law the rules relating to 
the operation of such schemes and, in particular, the issue of affiliation and 
the associated obligation to pay contributions. 
3.2 The Member States’ competence must, however, comply with EU law, 
including the freedom to provide services provided for in Articles 56 to 62 
TFEU. 
3.3 The obligation to join and to pay contributions, in the present case to the 
retirement scheme managed by the CARCDSF, laid down in Article L 111-1 
of the Social Security Code, amounts to a derogation from the freedom to 
provide services provided for in Articles 56 to 62 TFEU, since it deprives 
the contributor of the choice of another service equivalent or better suited to 
his or her situation. 
3.4 That provision of national law, which amounts to a restriction in respect of 
the aforementioned principle of EU law, must constitute an overriding 
reason relating to the public interest according to the criteria identified by 
the Court of Justice in its case-law; it is apparent from that case-law that the 
national provision must be qualified as lawful, sufficiently adequate to 
achieve the objective – in the present case that of protecting the financial 
balance of the pension scheme – in a consistent and systematic manner, and 
lastly it must employ strict means necessary to achieve it. 
3.5 Mr E ….D has standing to call into question the compliance with EU law of 
the national law at issue, in the present case the obligation to pay 
contributions to a specific fund – the CARCDSF – pursuant to Article L 
111-1 of the Social Security Code. 
3.6 [Article 19(3) TEU] and [Article] 267 TFEU confer on national courts the 
possibility, in a situation such as that in the main proceedings relating to 
decisions subject to internal appeal, to refer questions on the validity and 
interpretation of acts of the institutions, bodies, offices or agencies of the 
European Union to the Court of Justice for a preliminary ruling. 
3.7 The referring court is not aware of any case-law of the Court of Justice 
relating to whether the obligation under national law to join and to pay 
contributions to a French pension scheme is consistent with the freedom to 
provide services provided for by EU law, having regard to the complaint 
raised by Mr [ED] concerning the recurrent deficits of the scheme at issue. 
REQUEST FOR A PRELIMINARY RULING OF 26. 5. 2023 – CASE C-401/23 
 
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The CARCDSF does not invoke any decisions issued in that regard by the 
Court of Justice. 
3.8 The plea of illegality [...] raised by Mr E ….D …. in respect of the 
obligation to join and to pay contributions, in the light of EU law providing 
for the freedom to provide services, is liable to resolve the dispute consisting 
in the objections lodged by the individual concerned to two demands for 
payment of compulsory contributions to the pension scheme for 2019 and 
2020. 
3.9 The restrictive measure at issue is based on the need for protecting the 
financial balance of social security systems – in this case pension schemes – 
which is a shared objective of national and EU law. 
3.10 That objective is not achieved by the recurrent deficits identified, over a 
long period, or by the use of temporary measures that are constantly being 
renewed, through the creation in 1996 of the Caisse d’amortissement de la 
dette sociale (Social Security Debt Redemption Fund, ‘the CADES’); that 
fund is responsible for borrowing on international capital markets and 
guaranteeing such borrowings with resources separate from social 
contributions [intended to bear] the social debt transferred to it, primarily 
though the social debt redemption tax (CRDS) and a part of the generalised 
social contribution (CSG). Initially scheduled to fulfil its mission in 2009, 
the current mandate of the CADES extends until the end of 2023, since the 
debt remaining to be repaid amounted to EUR 136 billion at the end of 2033, 
and is constantly increasing, especially against a background of significant 
increases in interest rates on loans. 
3.11 It must therefore be noted that over a long period, extending at least from 
1996 to today, and looking ahead to 2033, the compulsory nature of the 
obligation to join and to pay contributions is not sufficient to meet the 
intended objective of protecting the financial balance of the social security 
system. Such a scheme requiring mandatory affiliation and the payment of 
contributions amounts to a restriction on EU law providing for the freedom 
to provide services, and the justification for that derogation is based on an 
objective that has not been regularly achieved. 
3.12 It must therefore be acknowledged that the question posed by Mr E ….D.., 
who disputes the fact that it is not possible to opt for another pension scheme 
of his choice, is relevant and there is therefore a doubt as to the compliance 
of the national system with EU law with regard to the freedom to provide 
services, thereby requiring interpretation by the Court of Justice by means of 
a preliminary ruling. 
3.13 Of the four questions that Mr E …. D … asks the court to refer to the Court 
of Justice for a preliminary ruling, only two are relevant [...][T]he questions 
relating to lawfulness and to the concepts of necessary measure and least 
CARCDSF 
 
5 
restrictive measure are excluded from the scope of the request for a 
preliminary ruling. 
3.14 The request for a preliminary ruling, set out below, has been reworded [...]. 
3.15 [...] [Procedural details] 
4 Request for a preliminary ruling 
The court asks the Court of Justice of the European Union to answer the following 
question: 
Must Article 56 TFEU, providing for the freedom to provide services, be 
interpreted as precluding the obligation to join and to pay contributions to a 
public social security scheme, laid down in Article L 111-1 of the Social Security 
Code – in the present case, the CARCDSF old-age pension scheme – taking into 
account, first, the criterion of consistency, and, second, the criterion of 
systematicity, in so far as the national restrictive measure pursues the objective of 
maintaining and guaranteeing the financial balance of the social security system, 
but without ever achieving it, and by organising the management of recurrent 
deficits? 
[...]