The legal framework

Union law

Directive 2013/55

According to recital 1 of Directive 2013/55, Directive 2005/36, in its initial version, provides for automatic recognition for a limited number of professions, based on the harmonization of minimum training requirements.

 Recital 7 of Directive 2013/55 is worded as follows:

“Directive 2005/36/EC only applies to professionals who want to practice the same profession in another Member State. There are cases where, in the host Member State, the activities concerned fall within a profession whose scope of activity is greater than in the home Member State. If the differences between the fields of activity are so great that it is necessary to require the professional to follow a comprehensive education and training program to compensate for his deficiencies and if that professional requests it, the Member State reception should, in these particular conditions, grant him partial access. However, in the event of overriding reasons of general interest, defined as such by the Court of Justice of the European Union in its case law relating to Articles 49 and 56 of the Treaty on the Functioning of the European Union, likely to continue to evolve , a Member State should be able to refuse partial access. This may be the case, in particular, for health professions, if they have public health or patient safety implications. Granting partial access should be without prejudice to the right of social partners to organize. »

Directive 2005/36 amended

Recitals 1 and 19 of amended Directive 2005/36 state:

'(1) Pursuant to Article 3(1)(c) of the Treaty, the abolition between Member States of obstacles to the free movement of persons and services constitutes one of the objectives of the Community. For nationals of Member States, this concerns in particular the right to exercise a profession, as an employee or self-employed person, in a Member State other than that where they acquired their professional qualifications. Furthermore, Article 47(1) of the Treaty provides that directives aimed at the mutual recognition of diplomas, certificates and other qualifications are to be adopted.

[...]

(19) Free movement and mutual recognition of training qualifications for doctors, nurses responsible for general care, dental practitioners, veterinarians, midwives, pharmacists and architects should be based on the fundamental principle of automatic recognition of training qualifications on the basis of coordination of minimum training conditions. […] »

Article 1 of this directive, entitled “Purpose”, provides:

“This Directive establishes the rules according to which a Member State which makes access to a regulated profession or its exercise, on its territory, subject to the possession of specific professional qualifications (hereinafter referred to as the “host Member State”) recognizes , for access to and exercise of this profession, professional qualifications acquired in one or more other Member States (hereinafter referred to as “home Member State”) and which enable the holder of said qualifications to practice there the same profession.

This Directive also establishes rules concerning partial access to a regulated profession and the recognition of professional internships carried out in another Member State. »

Article 4 of that directive, entitled “Effects of recognition”, provides:

1. 1. 1. 1. the host Member State allows beneficiaries to access “The recognition of professional qualifications by this Member State to the same profession as that for which they are qualified in the Member State of origin and to practice it there under the same conditions as nationals.
         2. For the purposes of this Directive, the profession which the applicant wishes to pursue in the host Member State is the same as that for which he is qualified in his home Member State if the activities covered are comparable.
         3. By way of derogation from paragraph 1, partial access to a profession shall be granted in the host Member State under the conditions established in Article 4f. »

Article 4 septies of amended Directive 2005/36, entitled “Partial access”, is worded as follows:

1. 1. 1. 1. 1. “The competent authority of the host Member State shall grant partial access on a case-by-case basis to a professional activity on its territory, only when all of the following conditions are met:
               1. the professional is fully qualified to carry out in the home Member State the professional activity for which partial access is requested in the host Member State;
               2. the differences between the professional activity legally exercised in the Member State of origin and the profession regulated in the host Member State are so significant that the application of compensation measures would amount to requiring the applicant to follow the full program education and training required in the host Member State to have full access to the profession regulated in the host Member State;
               3. the professional activity can objectively be separated from other activities falling within the regulated profession in the host Member State.

For the purposes of point (c), the competent authority of the host Member State shall take into account whether the professional activity can or cannot be exercised autonomously in the home Member State.

1. 1. 1. 1. Partial access may be refused if this refusal is justified by overriding reasons of general interest, if it is suitable for guaranteeing the achievement of the objective pursued and if it does not go beyond what is necessary to reach this goal.
         2. Applications for establishment in a host Member State are examined in accordance with Title III, Chapters I and IV.
         3. Applications for the provision of temporary and occasional services in the host Member State concerning professional activities which have public health or safety implications shall be examined in accordance with Title II.
         4. By way of derogation from the sixth subparagraph of Article 7(4) and Article 52(1), the professional activity shall be carried out under the professional title of the Member State of origin when partial access has been granted . The host Member State may require that this professional title be used in the languages ​​of the host Member State. Professionals who benefit from partial access clearly indicate to the recipients of the services the scope of their professional activities.
         5. This article does not apply to professionals who benefit from automatic recognition of their professional qualifications in accordance with Title III, Chapters II, III and III bis. »

Appearing under Title III, Chapter III, of Directive 2005/36 as amended, which relates to 'recognition on the basis of the coordination of minimum training conditions', the first subparagraph of Article 21(1) of that directive directive, entitled “Principle of automatic recognition” provides that “each Member State recognizes the training qualifications of doctor, giving access to the professional activities of doctor with basic training and specialist doctor and the training qualifications of nurse responsible for general care , dental practitioner, specialist dental practitioner, veterinarian, pharmacist and architect, referred to respectively in Annex V, points 5.1.1, 5.1.2, 5.2.2, 5.3.2 .5.3.3, 5.4.2, 5.6.2, 5.7.1 and 24, which comply with the minimum training conditions referred to respectively in articles 25, 31, 34, 35, 38, 44, 46 and XNUMX, by giving them , with regard to access to professional activities and their exercise, the same effect on its territory as the training qualifications it issues.

Article 4 septies of amended Directive 2005/36, entitled “Partial access”, is worded as follows:

1. 1. 1. 1. 1. “The competent authority of the host Member State shall grant partial access on a case-by-case basis to a professional activity on its territory, only when all of the following conditions are met:
               1. the professional is fully qualified to carry out in the home Member State the professional activity for which partial access is requested in the host Member State;
               2. the differences between the professional activity legally exercised in the Member State of origin and the profession regulated in the host Member State are so significant that the application of compensation measures would amount to requiring the applicant to follow the full program education and training required in the host Member State to have full access to the profession regulated in the host Member State;
               3. the professional activity can objectively be separated from other activities falling within the regulated profession in the host Member State.

For the purposes of point (c), the competent authority of the host Member State shall take into account whether the professional activity can or cannot be exercised autonomously in the home Member State.

1. 1. 1. 1. Partial access may be refused if this refusal is justified by overriding reasons of general interest, if it is suitable for guaranteeing the achievement of the objective pursued and if it does not go beyond what is necessary to reach this goal.
         2. Applications for establishment in a host Member State are examined in accordance with Title III, Chapters I and IV.
         3. Applications for the provision of temporary and occasional services in the host Member State concerning professional activities which have public health or safety implications shall be examined in accordance with Title II.
         4. By way of derogation from the sixth subparagraph of Article 7(4) and Article 52(1), the professional activity shall be carried out under the professional title of the Member State of origin when partial access has been granted . The host Member State may require that this professional title be used in the languages ​​of the host Member State. Professionals who benefit from partial access clearly indicate to the recipients of the services the scope of their professional activities.
         5. This article does not apply to professionals who benefit from automatic recognition of their professional qualifications in accordance with Title III, Chapters II, III and III bis. »

Appearing under Title III, Chapter III, of Directive 2005/36 as amended, which relates to 'recognition on the basis of the coordination of minimum training conditions', the first subparagraph of Article 21(1) of that directive directive, entitled “Principle of automatic recognition” provides that “each Member State recognizes the training qualifications of doctor, giving access to the professional activities of doctor with basic training and specialist doctor and the training qualifications of nurse responsible for general care , dental practitioner, specialist dental practitioner, veterinarian, pharmacist and architect, referred to respectively in Annex V, points 5.1.1, 5.1.2, 5.2.2, 5.3.2 .5.3.3, 5.4.2, 5.6.2, 5.7.1 and 24, which comply with the minimum training conditions referred to respectively in articles 25, 31, 34, 35, 38, 44, 46 and XNUMX, by giving them , with regard to access to professional activities and their exercise, the same effect on its territory as the training qualifications it issues.

French law

Article L. 4002-3 of the public health code opens up the possibility of partial access to all health professions governed by the fourth part of the same code, including, therefore, the professions to which applies the mechanism of automatic recognition of professional qualifications.

11 Decree no. 2017-1520 of November 2, 2017, relating to the recognition of professional qualifications in the field of health, was taken for the application, in particular, of article L. 4002-3 of the health code public.

12 The orders of the Minister of Solidarity and Health of December 4 and 8, 2017 were taken for the application of Decree No. 2017-1520 of November 2, 2017.

The main dispute and the preliminary question

The dental surgeons of France have, through several requests, seized the Council of State (France) of recourse in excess of power, tending, depending on the case, to the annulment, total or partial, of decree no. 2017-1520 of November 2, 2017, and/or the annulment of the orders of the Minister of Solidarity and Health of December 4, 2017 and/or December 8, 2017.

With regard to the said decree, the dental surgeons of France who attacked it argued, in particular, that article L. 4002-3 of the public health code, which is the legal basis of this decree, was incompatible, as it applies to the professions of doctor, dental surgeon, midwife and nurse, with Article 4f(6) of Directive 2005/36 as amended, so that the same decree would, consequently, illegally include in the field of partial access, the professions covered by Title III, Chapter III, of this directive.

As regards the two orders at issue in the main proceedings, it has been argued, in particular, that they are illegal insofar as they relate to professions covered by Title III, Chapter III, of Directive 2005/36 as amended, these professions being excluded from the partial access mechanism provided for in Article 4f(6) of that directive.

According to the referring court, Decree No. 2017-1520 of November 2, 2017 being adopted on the basis of the provisions of Article L. 4002-3 of the Public Health Code, the question of whether Article 4 septies, paragraph 6 of Directive 2005/36 as amended must be understood as having excluded a Member State from introducing the possibility of partial access to one of the professions to which the mechanism for the automatic recognition of professional qualifications provided for applies. by the provisions of Title III, Chapter III, of this directive, is decisive for the solution of the dispute and presents a serious difficulty. As for the legality of the two contested orders, it would depend on that of the said decree, which constitutes their legal basis.

In these conditions, the Council of State decided to stay its ruling and to ask the Court the following preliminary question:

'Does [paragraph] 6 of Article 4f of Directive 2005/36 [amended] exclude a Member State from introducing the possibility of partial access to one of the professions to which the mechanism of application applies? the automatic recognition of professional qualifications provided for by the provisions of Chapter III of Title III of the same directive? »

On the preliminary question

By its question, the referring court asks, in essence, whether Article 4f(6) of Directive 2005/36 as amended must be interpreted as meaning that it precludes legislation allowing the possibility of partial access to one of the professions covered by the automatic recognition of professional qualifications mechanism provided for by the provisions of Title III, Chapter III, of this directive.

In this regard, according to consistent case law of the Court, to the extent that the provisions of Union law do not refer to the law of the Member States to determine their meaning and scope, these must find, throughout Union, an autonomous and uniform interpretation, which must be sought taking into account not only the terms thereof, but also the context of these provisions and the objective pursued by the regulations in question (judgment of October 21, 2020, Möbel Kraft, C‑529/19, EU:C:2020:846, paragraph 21 and case law cited).

As is clear from recital 19 of amended Directive 2005/36, the latter provides, with regard to the training qualifications of doctor, nurse responsible for general care, dental practitioner, veterinarian, midwife, pharmacist and architect, a system of automatic recognition of training qualifications based on the coordination of minimum training conditions (see, to this effect, judgment of April 30, 2014, Order of Architects, C‑365/13, EU:C:2014:280, paragraph 20).

Pursuant to Article 4f(6) of Directive 2005/36 as amended, this article does not apply to professionals who benefit from automatic recognition of their professional qualifications in accordance with Title III, Chapters II, III and III bis, of this directive.

Thus, it appears from the wording of that provision that professionals who benefit from the automatic recognition of their professional qualifications in accordance with Article 4f(1) to (5) of Directive 2005/36 as amended are excluded from the partial access provided for in in Title III, Chapters II, III and IIIa, of this directive, and not the professions which are concerned by such automatic recognition.

The wording of Article 4f(6) of Directive 2005/36 as amended therefore clearly indicates that it refers to individuals.

Such a textual interpretation of that provision is consistent with the context and objective of that directive.

In this regard, it must be noted that both the genesis of Directive 2005/36 and the scheme of the latter confirm that the Union legislature intended to distinguish the use of the terms “professions” and “professionals”.

Indeed, on the one hand, it follows from the examination of the file submitted to the Court that, while the proposal for a directive of the European Parliament and of the Council amending Directive 2005/36, emanating from the Commission [COM(2011) 883 final], did not contain a provision such as that which appears in the current Article 4f(6) of Directive 2005/36, the European Parliament proposed an amendment aimed at excluding from partial access professions which benefit from automatic recognition.

However, following an agreement between the institutions participating in the legislative process, the term “professionals” was retained.

On the other hand, with regard to the economy of automatic recognition, if Article 4f(6) of Directive 2005/36 as amended refers to "professionals" who benefit from it, other provisions of this directive, such as those mentioned by the Advocate General in point 23 and footnote 4 of his conclusions, target, on the contrary, the “professions” which benefit from it or not.

Furthermore, it is important to recall that, under the terms of recital 7 of Directive 2013/55, in the event of overriding reasons of general interest, a Member State should be able to refuse partial access, in particular for professions health, if they have implications for public health or patient safety. Health professions include, in particular, professions concerned by the automatic recognition of professional qualifications, such as those of doctor, nurse responsible for general care, dental practitioner, veterinarian, midwife and pharmacist, which are referred to in Article 21 of Directive 2005/36 as amended and which benefit from automatic recognition. Therefore, the possibility of partial access to those professions being refused implies that, in principle, partial access to them is not excluded.

Such partial access meets, on the one hand, the general objective of the abolition between Member States of obstacles to the free movement of people and services, as set out in the recital of amended Directive 2005/36. On the other hand, it also meets the more specific objective which emerges from the recital in the preamble to Directive 2013/55, namely to go beyond Directive 2005/36, which only applied to professionals wishing to practice the same profession in another Member State, and grant the professional who requests it partial access when, in the host Member State, the activities concerned relate to a profession whose field of activity is greater than in the host Member State. Member State of origin and the differences between the fields of activity are so great that it is necessary to require the professional to follow a comprehensive education and training program to compensate for his shortcomings.

In the absence of a possibility of partial access to the health professions listed in paragraph 28 of this judgment, namely the professions listed under Title III, Chapter III, of Directive 2005/36 as amended, a good number of qualified health professionals in a Member State to carry out certain activities relating to one of those professions, but not corresponding, in the host Member State, to an existing profession, would continue to be confronted with obstacles to mobility.

Furthermore, as the Advocate General notes, in substance, in point 33 of his conclusions, the authorization of partial access to activities included in the professions concerned by automatic recognition in accordance, in particular, with Title III, Chapter III, of Directive 2005/36 as amended, is not likely to undermine the harmonization of the minimum training requirements required for these professions, as set out in recital 1 of Directive 2013/55.

Indeed, it appears from Article 4f(5) of Directive 2005/36 as amended that the activities authorized in the context of partial access to a regulated profession are carried out under the professional title of the Member State of origin, translated, where appropriate, into the languages ​​of the host Member State, and on the condition that the professional concerned clearly indicates to the recipients of the services the scope of his professional activities. Also, the fact of only being authorized to carry out part of the activities included in a profession concerned by automatic recognition does not call into question the system put in place by this directive and under which only people meeting the minimum requirements of training required by the latter for a profession concerned by automatic recognition can actually benefit from such recognition and carry out all the activities that such a profession includes.

Consequently, Article 4f(6) of Directive 2005/36 as amended therefore implies, as the Commission essentially argued in its written observations, that professionals who benefit from automatic recognition of their qualifications professionals in accordance, in particular, with Title III, Chapter III, of this directive, have access to all the activities covered by the corresponding profession in the host Member State and that they are therefore not concerned by access partial. On the other hand, this provision does not imply that the professions referred to in said Title III, Chapter III, are not affected by partial access.

Having regard to the foregoing considerations, the answer to the question posed should be that Article 4f(6) of Directive 2005/36 as amended must be interpreted as meaning that it does not preclude legislation allowing the possibility of partial access to one of the professions covered by the automatic recognition of professional qualifications mechanism provided for by the provisions of Title III, Chapter III, of this directive.

On the costs

As the procedure takes, with regard to the parties to the main proceedings, the character of an incident raised before the referring court, it is for the latter to rule on costs. Costs incurred for submitting observations to the Court, other than those of the said parties, cannot be reimbursed.

For these reasons, the Court (First Chamber) rules:

Article 4f(6) of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, as amended by Directive 2013/55/EU of the Parliament European and of the Council, of 20 November 2013, must be interpreted as meaning that it does not oppose legislation admitting the possibility of partial access to one of the professions covered by the automatic recognition of qualifications mechanism professionals provided for by the provisions of Title III, Chapter III, of this directive, as amended.