CELEX: 61985CC0096
Language: en
Date: 1986-03-04 00:00:00
Title: Opinion of Mr Advocate General Sir Gordon Slynn delivered on 4 March 1986. # Commission of the European Communities v French Republic. # Failure of a Member State to fulfil its obligations - Freedom of establishment - Right of establishment as a doctor or dental practitioner. # Case 96/85.

OPINION OF ADVOCATE GENERAL
      SIR GORDON SLYNN
      delivered on 4 March 1986
      
         My Lords,
      
      The last two paragraphs of Article L 412 of the French Code of Public Health, as amended and supplemented by Article 10 of Law 76-1288 of 31 December 1976, provide as follows:
      ‘A doctor may be enrolled on only one register, which shall be that of the department in which his place of work is situated, save as otherwise provided by the Code of Medical Ethics.
      A doctor enrolled or registered as a doctor in a State other than France may not be enrolled on any register of the ordre des médecins (National Society of Doctors).’
      By virtue of Article L 441 of the same Code, this provision applies equally to dentists.
      Article 1(6) of Decree No 77-456 of 28 April 1977 on the internal rules of the councils of the ordre des médecins, the ordre des chirurgiens-dentistes and the ordre des sages-femmes provides that the application of a doctor or dentist to be enrolled must be accompanied, inter alia, by a ‘certificate of the cancellation of the applicant's enrolment or registration delivered by the authority -with which he was previously enrolled or registered or alternatively a declaration by the applicant stating on his word of honour that he has never been enrolled or registered’.
      By letter dated 22 December 1983 the Commission notified the French Government that it considered that these provisions, which applied both to employed and to self-employed persons, were discriminatory, were in breach of Articles 52 and 59 of the Treaty and prevented the proper application of Council Directives No 75/362/EEC of 16 June 1975 (Official Journal 1975, L 167, p. 1) and No 78/686/EEC of 25 July 1978 (Official Journal 1978, L 233, p. 10) concerning the mutual recognition of qualifications, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, respectively of doctors and dentists. Having received no reply to that letter the Commission on 7 June 1984 sent a reasoned opinion to the French Government pursuant to Article 169 of the EEC Treaty but again received no reply. Accordingly the Commission brought these proceedings for a declaration that in maintaining the provisions the Republic of France had failed in its obligations under the Treaty and in particular those contained in Articles 48, 52 and 59 of the Treaty.
      The letter dated 22 December 1983 does not specifically mention Article 48 of the Treaty, as, in my view, it ought to have done if the Commission was seeking to rely on it, since the whole purpose of this letter is to give a Member State clear notice of what is alleged and a chance to reply to it. It is neither satisfactory nor sufficient for the Commission to wait for the reasoned opinion to set out precisely the grounds it relies on. By not referring to the relevant articles of the Treaty which are relied on it risks having its application held inadmissible. On the other hand, in this case it is clear that the preliminary letter is dealing with employed medical and dental practitioners and the reference to discrimination in the letter comes from Article 48 of the Treaty. I therefore consider the claim under Article 48 is admissible.
      The French Government seeks to justify these restrictions on the ground that a doctor and a dentist (‘chirurgien-dentiste’) must be readily available to the patient — medical care needs to be continuous especially as regards certain diseases in which complications may set in. In such cases regular and frequent attention may be needed. It points to the provisions of the Code of Medical Ethics which oblige doctors and dentists to ensure continuity of medical treatment (Article 39 of the Code of Medical Ethics for Doctors (Decree 79-506) and Article 28 of the Code of Dental Ethics (Decree 67-671)).
      Accordingly, it is said that these restrictions are justified on grounds of public health within the meaning of Article 48(3) of the Treaty in respect of employed persons and Article 56(1) in respect of establishment and the provision of services.
      Initially I had some doubt as to whether the exceptions on the ground of public health really cover this kind of situation. Article 48 refers to limitations justified on grounds of public health and Article 56 refers to provisions ‘providing for special treatment for foreign nationals on grounds of... public health’. They seem primarily directed at persons who may be excluded because they suffer from a communicable disease or may carry on activities or set up businesses which may endanger public health, as by allowing the emission of noxious substances. At the end of the day I do not consider that the words have to be read in that limited way. A doctor who carries on practice in a way which puts his patient at risk may be restricted, as may a person who seeks to carry on an activity which endangers public security or public order. It is, therefore, relevant to consider whether the rules adopted are justified in the interests of protecting patients.
      Despite, however, the insistence of the French Government on the need for continuing medical attention it is to be noted that the Code of Medical Ethics for French doctors does not require in absolute terms that a doctor shall have only one practice or that he shall devote his whole time to that practice. One practice is the general rule but by Article 63 of the Code of Medical Ethics a doctor may obtain dispensation from the general rule, and be authorized on a personal basis to have a second practice. The authorization is for a period of three years but it is renewable, though it is to be withdrawn if another doctor of the same discipline sets up a practice to look after patients in the area of the doctor's second practice. A dentist, on similar conditions, may have more than two practices where this is justified in the interests of patients, having regard to the particular geographic and demographic conditions prevailing (Articles 63 — 65 of the Dental Code).
      Moreover there is no provision that a doctor must live near to his practice and he may in the light of his age, health or specialization receive dispensation from the obligation laid down under Article 41 of the Code of Medical Ethics to take part in the rota of day and night duty. He may have a second job or profession provided only that that does not enable him to increase his earnings as a doctor and that it is not incompatible with the dignity of the medical profession (Articles 17 and 33 of the Code of Medical Ethics; Articles 3 and 23 of the Code of Dental Ethics are broadly to the same effect, save that a dentist does not have to take part in a rota at all). The doctor may hold elective or administrative office so long as he does not use it in order to gain new patients (Article 29 of the Code; the same is true of dentists under Article 24 of the Dental Code).
      The Court has been told that there exist in France 86000 principal offices and 756 second offices for doctors of which 69 are general practitioners and 687 specialists; and 28560 principal offices and 1000 second offices for dentists. No figures have been given of the number of applications made and refused.
      Even accepting (a) that dispensations in regard to certain practices may only be given if the two practices are close to each other and that such dispensations are subject to scrutiny by the professional organizations, and (b) that the doctor or dentist who takes other work or holds an elective office must still comply with his obligation to his patients, it is plain that the rules internally are less absolute than the provisions of Article 412 of the Code of Public Health which clearly impose restrictions on the taking of employment and on the establishment of a medical practice in France by those who are registered as doctors and dentists in other Member States.
      So far as establishment is concerned, the Commission relies on the Court's judgment in Case 107/83 Ordre des avocats de Paris v Klopp [1984] ECR 2971 where it was held that ‘Article 52 et seq of the EEC Treaty prevent the competent authorities of a Member State from denying on the basis of the national legislation and the rules of professional conduct which are in force in that State, to a national of another Member State, the right to enter and to exercise a legal profession solely on the ground that he maintains chambers simultaneously in another Member State.’ France replies that this decision must be distinguished since it was based on the proposition that ‘modern methods of transport and telecommunications facilitate proper contact with clients and judicial authorities’.
      It seems to me that the doctor and the dentist are not to be seen as in exactly the same position as a lawyer in this respect. The patient may need his doctor more quickly and more continuously than the client needs his lawyer and telephonic communication may in many cases clearly be insufficient.
      It must, however, equally be recognized that increasingly doctors belong to group practices and that a patient may not always see the same general practitioner. It may thus be perfectly compatible with the care of a group practice's patients for a doctor to take a period as a locum tenens employed elsewhere in the Community.
      Moreover, doctors are not all in the same position. A list of patients or sessions in hospitals in different cities of one country may be compatible with the specialist surgeon's duty of care. If such a surgeon can in fact operate in a hospital in Paris and Bordeaux there is no reason why he should not do so in Paris and Brussels or Bonn. Other specializations may even less require the continued nearness of the doctor to a onetime patient. A striking example given at the hearing was that of the radiologist. There are others such as that of the dermatologist, where continuing geographic proximity may be unnecessary, or the specialist in preventive medicine who wishes to be employed or to open a clinic one day a week in another city.
      Accordingly, and although ethical rules to ensure that the general practitioner and the specialist practise their profession in a way which provides adequate medical care to their patients, can be accepted as necessary (so long as they do not discriminate against practitioners from other Member States on the grounds of nationality), it seems to me that the blanket prohibition on all doctors and dentists from being registered in another Member State and maintaining a practice there, whilst having a practice in France, is unduly restrictive and has not been shown to be required in the interests of the patients.
      This conclusion is not undermined by the fact that, under conventions made in 1879 and 1910, Luxembourg and Belgian practitioners in certain Luxembourg and Belgian communes near to the French frontier are entitled respectively to practise in certain French communes near to the border with Luxembourg and Belgium. On the contrary, this fact underlines the possibility of doctors of the nationality of other Member States being able to practise in France from their own practices in other Member States. Nothing has been shown to indicate why German and Italian doctors in neighbouring communes should not equally be able to practise in adjacent French communes.
      The restrictions are, however, unjustified on the broader grounds to which I have referred.
      Nor is this conclusion undermined by the argument of the French Government that, if doctors and dentists could practise in France and other Member States, the doctor of another Member State could disregard the rules of medical ethics, or at any rate be less easily subject to disciplinary rules, than the doctor who is registered exclusively in France. As the Court stated in Klopp‘the existence of a second set of chambers in another Member State does not prevent the application of rules of ethics in the host Member State’. I can see no valid reason why the same should not apply to doctors and dentists.
      It is no answer to the Commission's claim to argue, as does the French Government, that Council Directive 78/686 in regard to dentists and Council Directive No 75/363 (Official Journal 1975, L 167, p. 14) are concerned only with partial harmonization of national rules and and that liberalization must take place progressively. If what is done is contrary to provisions of the Treaty that is sufficient. Moreover whether (as the Commission contends) or not (as France replies) French doctors are able, so far as French rules are concerned, to have employment or to set up second practices in other Member States does not in the end affect the question.
      In my opinion the prohibition contained in Articles 412 and 441 of the French Code of Public Health and in Article 1(6) of Decree No 77-456 do constitute restrictions on the free movement of workers within the meaning of Article 48 and on the freedom of establishment within the meaning of Article 52 of the Treaty. It clearly prevents all doctors and dentists from taking up any form of employment in France if they are enrolled in their own country and it in general prevents the setting up of practices in France by doctors enrolled or registered in other Member States. It also in practice constitutes discrimination on the grounds of nationality since it effectively imposes on the doctors of other Member States, who are nationals of those States, restrictions wider than those imposed on doctors registered in France. In the wide form in which these rules are adopted they have not been shown to be justified on grounds of public health.
      Until the hearing it appeared that doctors and dentists providing services in France pursuant to Article 59 were required to be enrolled there. It was only at the hearing that it emerged that this is not in fact always the case. The agent for the French Government informed the Court for the first time of Article L 356-1 of the Code of Public Health which was inserted into that Code by Law 76-1288 of 31 December 1976. According to this provision, a doctor providing services in France within the meaning of Article 59 is not required to be enrolled. Instead he must make a declaration the terms and conditions of which were to be laid down by a decree. Article L 356-1 also stipulates that this declaration must be accompanied by a document from the relevant authority of the doctor's Member State certifying that he possesses the requisite diplomas, certificates and other qualifications and that he lawfully practises medicine in the Member State in which he is established. In addition he is required to declare on his honour that he is subject to no proceedings which might lead to his being suspended or prohibited from practising.
      Decree 77-637 of 21 June 1977 implemented Article L 356-1 restrictively in that by Article 4 of that Decree the declaration provided for in Article L 356-1 may only cover the treatment of one patient during a two-day stay in France by the doctor concerned.
      After the hearing in these proceedings the French Government sent to the Court a copy of Decree 86-112 which revokes and replaces Decree 77-637. The new Decree was itself adopted after the hearing, on 23 January 1986. At least in so far as it is material, this instrument reenacts the earlier Decree while at the same time extending it to dentists. Thus, according to Article 4 of the new Decree the declaration provided for in Article L 356-1 may only cover the treatment of one patient during a two-day stay in France by the doctor or dentist concerned.
      It is regrettable that this information came in piecemeal and at a late stage.
      However, these provisions in my view do not, in any event, prevent there being a breach of Article 59 of the Treaty. They give a very limited right. The provision of any other medical services requires exclusive registration in France by the nationals of other Member States. That constitutes clearly a restriction on the freedom to provide services. For the reasons already given the rules relied on are not justified on the grounds of public health either under Article 48, Article 52 or Article 59 of the Treaty. They go further than what may be necessary for the protection of patients.
      The Commission has referred to Articles 16(1) of Council Directive 75/362 (Official Journal 1975, L 167, p. 1) and Article 15 of Council Directive 78/686 (Official Journal 1978, L 233, p. 1) on measures to facilitate the exercise of the right of establishment for doctors and dentists respectively. The former has been amended by Article 7 of Council Directive 82/76 (Official Journal 1982, L 43, p. 21). Since the Commission has not asked for a declaration in respect of these directives I do not deal with them specifically.
      In the light of the above considerations it is my view that, by requiring doctors and dentists established in another Member State to cancel their enrolment or registration in that State as a condition of being able to practise on an employed or self-employed basis in its territory, France has infringed Articles 48 and 52 of the Treaty. Save in the limited circumstances provided for in Decree 86-112, France has also infringed Article 59 of the Treaty by virtue of the same restrictions.
      The costs of these proceedings should in my opinion be paid by the Republic of France.