Action brought on 27 October 2005 by the Commission of the European Communities against the French Republic

(Case C-389/05)

(2006/C 10/23)

Language of the case: French

An action against the French Republic was brought before the Court of Justice of the European Communities on 27 October 2005 by the Commission of the European Communities, represented by A. Bordes, acting as Agent, with an address for service in Luxembourg.

The Commission claims that the Court should:

Pleas in law and main arguments

Articles 43 and 49 EC respectively lay down the right of establishment and freedom to provide services. Article 46 also provides that the provisions of those Articles and the measures taken in pursuance thereof shall not prejudice the applicability of the domestic provisions of a Member State providing for special treatment for foreign nationals on grounds of public policy, public security, or public health. However, that latter provision is not at issue here, as the Commission's challenge does not concern special treatment for foreign nationals who wish to provide artificial insemination services in France, but the impossibility, in law and in fact, of Community nationals performing that activity because of the monopoly granted in France to ‘insemination centres’ by means of, inter alia, two provisions of French legislation.

Artificial insemination services in France, in fact and in law, are subject to a monopoly in favour of ‘centres de mise en place’, which prevents providers of those services from other Member States from performing those activities, either by means of the right of establishment or by that of freedom to provide services. The French authorities put forward health considerations which, they submit, may justify adopting or retaining domestic measures so restrictive as to nullify those two Treaty freedoms for practical purposes. The Commission disputes the validity of those justifications, however, considering that, by their very nature, those restrictions are in any event disproportionate to the health and safety objectives put forward as the main grounds for them.