France, Court of Cassation, 12 March 2020 17-22.436

Identification of the case

• L.4112-7 of the French Public Health Code; Article L. 162-5 of the Social Security Code; National agreement of 26 July 2011 organising relations between private practitioners and health insurance

• Articles 56 and 57 of the Treaty on the Functioning of the European Union

Summary of the case

A Belgian doctor who had practised for several years in Belgium and France decided in 2016 to close his practice in France, while continuing to practice in Belgium for his Belgian and French patients. He then applied for registration with the French Primary health insurance fund (the Fund), which required him to be previously registered on a special list as a doctor providing services. Challenging this decision, the doctor assigned the Fund. The Fund was ordered to proceed with the doctor's registration.

The Fund appealed this decision arguing that a doctor established in another EU Member State may, pursuant to L.4112-7 of the French Public Health Code, practise in France as a service provider provided that he has made a prior declaration. The Fund appealed to the Court of Cassation.

• Civil judicial enforcement

Concerning the exercise of the profession of doctor, it follows from the combination of articles L. 4111-1 and L 4112-7 of the French health public Code, that a doctor who is a national of an EU Member State and who is duly registered in France on the national Order of Physicians is not required to make a declaration of provision of services when he performs acts of his profession in France. The Court of cassation confirmed the reasoning of the Court of Appeal and stated that the doctor wasn’t covered by the provisions of Article L. 4112-7 of the Social Security Code requiring a declaration of service provision.

Concerning social security and health insurance, the national agreement of 26 July 2011 organising relations between private practitioners and health insurance, applies to self-employed doctors who are registered with the national Order of Physicians and who have chosen to practice under the agreement, for care provided at their place of practice or at the patient's home.

According to the established case law of the Court of Justice of the European Union, which is applicable to medical activities without it being necessary to distinguish between care provided in a hospital setting and care provided outside (judgment of 31 January 1984, P... and D... C-286/82 and C-26/83), the principle of freedom to provide services applies not only where the provider and the recipient of the service are established in different Member States, but also in all cases where a provider offers services in the territory of a Member State other than the one in which he is established, regardless of where the recipients of those services are established (judgments of 28 October 1999, Skatteministeriet v. Bent Vestergaard, C-55/98, of 5 October 1994, Commission v. France, C-381/93 and of 5 June 1997, SETTG, C-398/95), and that Member States are prohibited from introducing or maintaining unjustified restrictions on the exercise of this freedom in the field of health care (judgments of 12 July 2001, Smits and Peerbooms, C-157/99, of 16 May 2006, Watts, C-372/04, and of 19 April 2007, Stamatelaki, C-444/05).

It follows from the combination of Articles L. 162-5 of the Social Security Code (which allows a doctor established abroad to adhere, for care provided in France, to the national conventions governing relations between doctors and health insurance), of article 2 of the national agreement of 26 July 2011 organising relations between private practitioners and the health insurance scheme approved by order of 22 September 2011, and of Articles 56 and 57 of the Treaty on the Functioning of the European Union, as interpreted by the Court of Justice of the European Union, that national agreements organising relations between private practitioners and the health insurance scheme in France are applicable to all private practitioners, for the acts they perform on French territory, even on a reduced activity, provided that they are duly registered in France to the national Order of Physicians, regardless of his place of establishment in another Member State of the European Union.

Then, the Court of cassation stated that in holding that the Fund could not refuse to grant him a convention relating to his situation as a doctor duly registered on the national Order of Physicians, whereas the person concerned, established in Belgium, could only be covered by the applicable convention for care provided in France, even if it was for a reduced activity, the Court of Appeal violated, by misapplication, the articles previously mentioned.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• CJEU C-157/99, Smits e Peerbooms
• CJEU C-372/04, Watts
• CJEU C-444/05, Stamatelaki