Opinion of the Advocate General — ECLI:EU:C:2020:765
Date: 2020-10-01
Language of the case: French
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: France

Translation   C-940/19 — 1 
Case C-940/19 
Request for a preliminary ruling 
Date lodged: 
30 December 2019 
Referring court: 
Conseil d’État (France) 
Date of the decision to refer: 
19 December 2019 
Applicants: 
Les Chirurgiens-Dentistes de France 
Confédération des Syndicats médicaux français 
Fédération des Syndicats pharmaceutiques de France 
Syndicat des Biologistes 
Syndicat des Médecins libéraux 
Conseil national de l’Ordre des Chirurgiens-Dentistes 
Conseil national de l’Ordre des Masseurs-Kinésithérapeutes 
Conseil national de l’Ordre des Infirmiers 
Union dentaire 
Defendants: 
Ministre des Solidarités et de la Santé 
Ministre de l’Enseignement supérieur, de la Recherche et de 
l’Innovation 
Premier ministre 
  
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 19. 12. 2019 — CASE C-940/19 
 
2  
  FRENCH REPUBLIC 
 IN THE NAME OF THE FRENCH PEOPLE 
[…]  
 The Conseil d’État (Council of State, France) […] 
(Litigation Section, Combined 5th and 6th Chambers) 
[…] 
Having regard to the following procedure: 
1. [Action No 416964] […] The Confédération nationale des syndicats dentaires, 
now ‘Les chirurgiens-dentistes de France’, the Confédération des syndicats 
médicaux français, the Fédération des syndicats pharmaceutiques de France, the 
Syndicat des biologistes, the Syndicat des laboratoires de biologie clinique, the 
Syndicat des médecins libéraux and the Union dentaire claim that the Council of 
State should: 
(i) annul as ultra vires Articles 1, 2, 4 and 6 of décret n° 2017-1520 du 2 
novembre 2017 relatif à la reconnaissance des qualifications professionnelles dans 
le domaine de la santé (Decree No 2017-1520 of 2 November 2017 on the 
recognition of professional qualifications in the health sector); the arrêté du 4 
décembre 2017 relatif à la déclaration préalable de prestation de services pour les 
professions médicales et les pharmaciens (Order of 4 December 2017 on prior 
declarations of service provision for medical professions and pharmacists) issued 
by the Ministre des solidarités et de la santé (Minister for Solidarity and Health); 
and the arrêté du 8 décembre 2017 relatif à l’avis rendu par les commissions 
d’autorisation d’exercice ou par les ordres des professions de santé en cas d’accès 
partiel à une profession dans le domaine de la santé (Order of 8 December 2017 
relating to the opinions of practice approval committees or associations of health 
professions in connection with partial access to a profession in the health sector), 
also issued by the Minister for Solidarity and Health; 
(ii) […] [claim relating to costs] 
Les chirurgiens-dentistes de France and others also submit that: [Or. 2] 
– Article L. 4002-3 of the code de la santé publique (Public Health Code), which 
is the legal basis for the contested decree, is incompatible with Article 4f(6) of 
Directive 2005/36/EC of 7 September 2005 in so far as the former provision 
applies to the professions of doctor, dental surgeon, midwife and nurse; 
– the contested decree and contested orders therefore unlawfully include the 
professions covered by Chapter III of Title III of the directive within the scope of 
partial access. 
[…] [withdrawal of the Syndicat des laboratoires de biologie clinique] 
[…] The Minister for Solidarity and Health contends that the application should 
be dismissed. She submits that the grounds of challenge are unfounded. 
LES CHIRURGIENS-DENTISTES DE FRANCE AND OTHERS 
 
3 
[…] 
2. [Action No 417078] […] The Conseil national de l’ordre des chirurgiens-
dentistes claims that the Council of State should: 
(i) annul as ultra vires the abovementioned Decree of 2 November 2017 […] 
(ii) […] [expenses] 
[…] It submits that the contested decree: 
– […] [formal defect] 
– is based on Article L. 4002-3 of the Public Health Code, which is incompatible 
with Article 4f(6) of Directive 2005/36/EC of 7 September 2005 in so far as the 
former provision applies to the professions of doctor, dental surgeon, midwife, 
nurse and midwife; 
– […] [point of national law] 
– infringes Article L. 4002-4 of the Public Health Code by providing that a 
committee should be consulted on applications for partial access in addition to 
consulting the relevant professional association; [Or. 3] 
– inserts into that code Article R. 4002-4, which is unlawful in so far as it enables 
partial access to be imposed on the applicant even though such access was not 
requested; 
– inserts into that code, by means of Article 2 of the contested decree, provisions 
that are vitiated by a manifest error of assessment in so far as they establish, for 
the different professions concerned, an appeal before the tribunal administratif 
(Administrative Court) against the decision by which the competent authority 
adjudicates on the applicant’s command of the French language. 
[…] The Minister for Solidarity and Health contends that the application should 
be dismissed. She submits that the grounds of challenge are unfounded. 
[…] The Ministre de l’enseignement supérieur, de la recherche et de l’innovation 
(Minister for Higher Education, Research and Innovation) contends that the 
application should be dismissed. She endorses the observations submitted by the 
Minister for Solidarity and Health. 
The application was notified to the Premier ministre (Prime Minister) and the 
Président de la République (President of the French Republic), who did not file 
pleadings. 
3. [Action No 417937] […] The Conseil national de l’ordre des chirurgiens-
dentistes claims that the Council of State should: 
REQUEST FOR A PRELIMINARY RULING OF 19. 12. 2019 — CASE C-940/19 
 
4  
(i) annul as ultra vires the Minister for Solidarity and Health’s Order of 
4 December 2017 on prior declarations of service provision for medical 
professions and pharmacists; 
(ii) […] [expenses] 
[…] [It] submits that the contested order: 
– […] [point of national law] 
– unlawfully includes the professions covered by Chapter III of Title III of 
Directive 2005/36/EC of 7 September 2005 within the scope of partial access; 
– infringes Article L. 4112-7 of the Public Health Code by allowing practitioners 
established in a third State to practise under the freedom to provide services; 
– is vitiated by a manifest error of assessment as regards the requirements relating 
to probative value and authenticity that must be met by the documents proving 
that the applicant has pursued his profession in his State of establishment full-time 
for a period of three years or part-time for an equivalent total period. [Or. 4] 
[…] The Minister for Solidarity and Health contends that the application should 
be dismissed. She submits that the grounds of challenge are unfounded. 
4. [Action No 417963] […] The Conseil national de l’ordre des masseurs-
kinésithérapeutes claims that the Council of State should: 
(i) annul as ultra vires the arrêté du 8 décembre 2017 relatif à la déclaration 
préalable de prestation de services pour les conseillers en génétique, les physiciens 
médicaux et les préparateurs en pharmacie et en pharmacie hospitalière, ainsi que 
pour les professions figurant au livre III de la partie IV du code de la santé 
publique (Order of 8 December 2017 on prior declarations of service provision for 
genetic counsellors, medical physicists, pharmacy and hospital pharmacy 
assistants, and the professions listed in Book III of Part IV of the Public Health 
Code) issued by the Minister for Solidarity and Health; 
(ii) […] [expenses] 
[…] [It] submits that the contested order: 
– […] [point of purely national law] 
– infringes Article R. 4311-38 of the Public Health Code by failing to require the 
production of documents enabling the nature and content of the basic training 
undertaken to be checked, by failing to include particulars concerning the place of 
first performance of the services, by failing to include information on the length of 
time during which the services were provided and, lastly, by failing to require, in 
the case of professional insurance, information other than the name of the 
insurance company and policy number; 
LES CHIRURGIENS-DENTISTES DE FRANCE AND OTHERS 
 
5 
– infringes Article L. 4321-11 of the Public Health Code by failing to require the 
production of documents evidencing the applicant’s language skills. 
[…] The Minister for Solidarity and Health contends that the application should 
be dismissed. She submits that the grounds of challenge are unfounded. 
5. [Action No 418010] […] The Conseil national de l’ordre des chirurgiens-
dentistes claims that the Council of State should: 
(i) annul as ultra vires the arrêté du 8 décembre 2017 désignant les préfets de 
région compétents pour l’examen des demandes d’autorisation d’exercice ou de 
prestation de services des professions de santé (Order of 8 December 2017 
designating the regional prefects responsible for examining applications for 
approval to practise or provide services in the health professions) issued by the 
Minister for Solidarity and Health; [Or. 5] 
(ii) […] [expenses] 
[…] [It] submits that the contested order is unlawful in so far as it relates to the 
profession of dental surgeon, which is excluded from the partial access 
mechanism laid down by the directive of 7 September 2005. 
[…] The Minister for Solidarity and Health contends that the application should 
be dismissed. She submits that the grounds of challenge are unfounded. 
6. [Action No 418013] […] The Conseil national de l’ordre des chirurgiens-
dentistes claims that the Council of State should: 
(i) annul the Minister for Solidarity and Health’s Order of 8 December 2017 
relating to the opinions of practice approval committees or associations of health 
professions in connection with partial access to a profession in the health sector; 
(ii) […] [expenses] 
[…] [It] submits that the contested order: 
– is unlawful in so far as it relates to the professions covered by Chapter III of 
Title III of the directive, particularly that of dental surgeon, since those 
professions are excluded from the partial access mechanism by Article 4f(6) of 
Directive 2005/36/EC; 
[…] [objection under national law] 
[…] [objection under national law]  
[…] The Minister for Solidarity and Health contends that the application should 
be dismissed. She submits that the grounds of challenge are unfounded. [Or. 6] 
REQUEST FOR A PRELIMINARY RULING OF 19. 12. 2019 — CASE C-940/19 
 
6  
7. [Action No 419746] … The Conseil national de l’ordre des infirmiers claims 
that the Council of State should: 
(i) annul the implied decision resulting from the Minister for Solidarity and 
Health’s failure to respond to its informal appeal of 28 December 2017 seeking 
the withdrawal of Decree No 2017-1520 of 2 November 2017 and that minister’s 
Order of 8 December 2017 relating to the opinions of practice approval 
committees or associations of health professions in connection with partial access 
to a profession in the health sector; 
(ii) […] [expenses] 
[…] [It] submits that: 
[…] [points of national law] 
– Article L. 4002-3 of the Public Health Code, resulting from the ordonnance du 
19 janvier 2017 (Ordinance of 19 January 2017), is incompatible, in so far as it 
applies to the professions of doctor, dental surgeon, midwife, nurse and midwife, 
with the directive of 7 September 2005, which excludes the professions covered 
by Chapter III of Title III of the directive from the partial access mechanism; 
– the contested decree and contested order unlawfully include the professions 
covered by Chapter III of Title III of that directive within the scope of partial 
access. 
[…] The Minister for Solidarity and Health contends that the application should 
be dismissed. She submits that the grounds of challenge are unfounded. 
The application was notified to the Prime Minister and the President of the French 
Republic, who did not file pleadings. 
Having regard to the other documents in the files; 
Having regard to: [Or. 7] 
– the Treaty on the Functioning of the European Union, in particular Article 267 
thereof; 
– Directive 2005/36/EC of the European Parliament and of the Council of 
7 September 2005; 
– Directive 2013/55/EU of the European Parliament and of the Council of 
20 November 2013; 
– the Public Health Code; 
– the loi n° 2016-41 du 26 janvier 2016 (Law No 2016-41 of 26 January 2016); 
LES CHIRURGIENS-DENTISTES DE FRANCE AND OTHERS 
 
7 
– the loi n° 2018-132 du 26 février 2018 (Law No 2018-132 of 26 February 
2018); 
– the ordonnance n° 2016-1809 du 22 décembre 2016 (Ordinance No 2016-1809 
of 22 December 2016); 
– the ordonnance n° 2017-50 du 19 janvier 2017 (Ordinance No 2017-50 of 
19 January 2017); 
– the code de justice administrative (Administrative Justice Code); 
[…] [procedural matters] 
Whereas: 
1. The abovementioned applications brought by Les Chirurgiens-dentistes de 
France and others, the Conseil national de l’ordre des chirurgiens-dentistes, the 
Conseil national de l’ordre des masseurs-kinésithérapeutes and the Conseil 
national de l’ordre des infirmiers seek a ruling on similar matters. It is appropriate 
that they be joined so that they may be determined in a single decision. 
[…] 
2. [observation concerning the withdrawal of the Syndicat des laboratoires de 
biologie clinique] 
Contested decree and contested orders: 
3. Article 4f(1), which was inserted into Directive 2005/36/EC of the European 
Parliament and of the Council of 7 September 2005 on the recognition of 
professional qualifications by Directive 2013/55/EU of the European Parliament 
and of the Council of 20 November 2013, provides as follows:  
‘The competent authority of the host Member State shall grant partial access, on a 
case-by-case basis, to a professional activity in its territory only when all the 
following conditions are fulfilled:  
(a) the professional is fully qualified [Or. 8] to exercise in the home Member State 
the professional activity for which partial access is sought in the host Member 
State; 
(b) differences between the professional activity legally exercised in the home 
Member State and the regulated profession in the host Member State as such are 
so large that the application of compensation measures would amount to 
requiring the applicant to complete the full programme of education and training 
required in the host Member State to have access to the full regulated profession 
in the host Member State; 
REQUEST FOR A PRELIMINARY RULING OF 19. 12. 2019 — CASE C-940/19 
 
8  
(c) the professional activity can objectively be separated from other activities 
falling under the regulated profession in the host Member State.  
For the purpose of point (c), the competent authority of the host Member State 
shall take into account whether the professional activity can be pursued 
autonomously in the home Member State.’ 
The ordonnance du 19 janvier 2017 relative à la reconnaissance des qualifications 
professionnelles dans le domaine de la santé (Ordinance of 19 January 2017 on 
the recognition of professional qualifications in the health sector), transposing 
those provisions into French law, inserted, inter alia, Articles L. 4002-3 to L. 
4002-6 into the Public Health Code, which lay down the conditions for partial 
access to the health professions governed by Part IV of that code. Those 
provisions acquired force of law upon the ordinance’s ratification by the Law of 
26 February 2018.  
The applicants seek the annulment as ultra vires of the Decree of 2 November 
2017 on the recognition of professional qualifications in the health sector, 
implementing those legislative provisions, and the Minister for Solidarity and 
Health’s Orders of 4 and 8 December 2017, implementing the decree. 
[…] [consideration of the decree’s formal legality] 
4. […]  
5. […]  
Substantive legality of the decree: 
6. In the first place, Article R. 4002-2 of the Public Health Code, inserted into that 
code by the contested decree, provides that, in the case of applications for partial 
access for the purpose of establishment, it is necessary to obtain the opinion not 
only of the competent professional association, where appropriate, but also of the 
committees responsible for deciding, under the provisions of Part IV of the Public 
Health Code concerning the different health professions, on individual approvals 
to practise the professions in question. 
7. Although Article L. 4002-4 of the Public Health Code provides for consultation 
of the professional associations concerned, where appropriate, this does not 
prevent the contested decree from also providing for consultation of the 
committees referred to in the preceding paragraph or from specifying the matters 
to be, in particular, covered by the opinions of those committees and of the 
associations’ bodies. Furthermore, the argument that Article R. 4002-2 is unlawful 
in that it thus requires opinions to be obtained from a professional association on 
decisions that are for that association to take is ineffective, since the competent 
[Or. 9] authority for deciding on an application for approval to practise is the 
minister, not the professional association, which is required to decide only on 
entry in its roll. 
LES CHIRURGIENS-DENTISTES DE FRANCE AND OTHERS 
 
9 
8. In the second place, [rejection of the ground of challenge that the reference to a 
ministerial order infringes the provisions of the Public Health Code which require 
the conditions and detailed rules of application to be laid down by decree of the 
Council of State]. 
9. In the third place, Article R. 4002-4 of the Public Health Code, inserted into 
that code by the contested decree, provides as follows: ‘In the case of an 
application for approval to practise for the purpose of establishment, where the 
committee’s opinion contains a more restrictive proposal for partial access and 
the applicant’s profession is covered by an association, the opinion of that 
association shall be sought under the conditions laid down by Article R. 4002-3.’ 
Contrary to the applicants’ claims, those provisions have neither the object nor the 
effect of enabling partial access to practise to be imposed on a professional 
seeking approval to practise a health profession for the purpose of establishment. 
The argument alleging that they are, for that reason, unlawful must therefore be 
rejected. 
10. In the fourth place, Article R. 4112-1 of the Public Health Code provides that, 
in order to be entered in the roll of the association of doctors, dental surgeons or 
midwives, the applicant must provide, inter alia, ‘evidence that [he] possesses the 
linguistic ability necessary for practising the profession’. Furthermore, a decision 
of the local board refusing entry in the roll, in particular on the ground of 
insufficient linguistic ability, may be the subject of an administrative appeal to the 
regional or interregional board, and thereafter to the national board of the 
association, those appeals being prerequisites for appeal proceedings before the 
Council of State. 
11. In order to transpose the provisions of Article 53 of the directive of 
7 September 2005, under which ‘any language controls shall be proportionate to 
the activity to be pursued. The professional concerned shall be allowed to appeal 
such controls under national law’, Article 2 of the contested decree inserted 
Article R. 4112-6-2 into the Public Health Code. Article R. 4112-6-2 applies to 
the procedure governing entry in the roll of associations of medical professions 
and provides as follows: ‘The control by the competent authority of the 
applicant’s command of the French language shall be recorded in a decision which 
may be the subject of an appeal before the Administrative Court with territorial 
jurisdiction’. Although the Conseil national de l’ordre des chirurgiens-dentistes 
submits that the introduction, by that article, of the requirement for a specific 
decision by the local board of the association on the applicant’s linguistic ability , 
coupled with a special redress procedure against that decision before the 
Administrative Court, is, by reason of its coexistence with the procedure referred 
to in paragraph 10, liable to complicate the procedure for challenging a refusal to 
enter an applicant in the roll of the association, such complexity does not mean 
that the contested decree is vitiated by a manifest error of assessment. [Or. 10] 
12. However, in the fifth place, Article 4f(6), which was inserted into the 
abovementioned directive of 7 September by the directive of 20 November 2013, 
REQUEST FOR A PRELIMINARY RULING OF 19. 12. 2019 — CASE C-940/19 
 
10  
provides that ‘this Article shall not apply to professionals benefiting from 
automatic recognition of their professional qualifications under Chapters II, III 
and IIIa of Title III’. Chapter III of Title III relates to the recognition of 
professional qualifications on the basis of coordination of minimum training 
conditions, which concerns evidence of formal qualifications as doctor giving 
access to the professional activities of doctor with basic training and specialised 
doctor, as nurse responsible for general care, as dental practitioner, as specialised 
dental practitioner, as midwife and as pharmacist. In France, those professions are 
regulated professions governed by Part IV of the Public Health Code. Article L. 
4002-3 of that code opens up the possibility of partial access to all the health 
professions governed by Part IV of the code, including, therefore, professions to 
which the mechanism for the automatic recognition of professional qualifications 
applies. The applicants claim that, in so doing, that article is incompatible with 
Article 4f(6) of the directive of 7 September 2005 cited above. The answer to the 
ground of challenge raised thus depends on whether that article of the directive 
must be interpreted as precluding a Member State from introducing the possibility 
of partial access to one of the professions covered by the mechanism for the 
automatic recognition of professional qualifications laid down by the provisions of 
Chapter III of Title III of that directive. 
13. Since the contested decree was adopted on the basis of the provisions of 
Article L. 4002-3 of the Public Health Code, that question is decisive for the 
resolution of the dispute before the Council of State and presents a serious 
difficulty. It is, accordingly, appropriate to refer the matter to the Court of Justice 
of the European Union pursuant to Article 267 of the Treaty on the Functioning of 
the European Union and, pending the ruling of that Court, to stay the proceedings 
brought by the Confédération nationale des syndicats dentaires and others against 
the contested decree. 
Contested orders: 
14. Since the legality of the contested orders depends on the legality of the decree 
constituting their legal basis, it is also appropriate to stay the proceedings seeking 
annulment of those orders until the Court of Justice of the European Union has 
adjudicated on the question referred to it for a preliminary ruling. 
HAS DECIDED AS FOLLOWS: 
[…]  
[…] The proceedings relating to the applications are stayed until the Court of 
Justice of the European Union has given a preliminary ruling on the following 
question: [Or. 11] 
Does Article 4f(6) of Directive 2005/36/EC of 7 September 2005 preclude a 
Member State from introducing the possibility of partial access to one of the 
professions covered by the mechanism for the automatic recognition of 
LES CHIRURGIENS-DENTISTES DE FRANCE AND OTHERS 
 
11 
professional qualifications laid down by the provisions of Chapter III of Title III 
of that directive? 
[…] [standard procedural wording] 
Deliberation following the sitting on 29 November 2019 […]  
Delivered in open court on 19 December 2019. 
[…]