Health Authorizations in France: Legal Framework and Jurisprudence

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[...] The procedure remains heavy and complex. II. The complexity of implementing an optimal control A. The necessary implementation of limitation 1. The limitation of the scope of application of health authorizations The application of the principles of public procurement / competition law : - Council of State July 2009: double referral for a suspended decision by the referring judge, the decision provided for the creation of a care and functional rehabilitation service. It is up to the Council of State to determine whether the principles related to competition law apply and are vectors of legality for health authorizations. [...]

[...] Finally, it is possible to use the recourse in full contentious for questions of responsibility and recourse for compensation. - Subordination to a collaboration mechanism: Administrative Court of Appeal of Nantes, October 15, 2021: 19NT03206 = the ARS can legitimately refuse an authorization if it is necessary to condition the use of this equipment to permanent collaboration modalities between 2 establishments, while there is a heavy contentious between the 2. The ARS can then rely without any error of law on the fact that cooperation between healthcare establishments cannot be put in place. [...]

[...] - CAA de Lyon, 6ème chamber May 2022: safety and quality of care are primary objectives without which a healthcare activity cannot survive. 2. Exceptional powers conferred in view of the context - The legislative framework, fragile as it is, has been able to confer significant prerogatives. For example, health authorizations, as an administrative act, could be subject to a review procedure or an injunction procedure, suspension or even withdrawal of authorization. The authorization could also lapse if it was not implemented within 3 years; this is then a special administrative law regime for these acts. [...]

[...] - Council of State December 2011, Danthony: Lists of procedures and form can be neutralized in principle unless the defect exercises an influence on the meaning of the decision that it deprives the interested parties of a guarantee. - Council of State February 2018, Parc Society: This decision is specific to the matter, the Council of State makes all appeals in excess of power irreceivable to direct against an injunction made by the regional health agency to the holder of a health authorization. Because it would be in reality a preparatory measure. [...]

[...] A good number of questions are then raised as to the legal security attached to these provisions as well as the health consequences to date. - To get an idea of the quantity of soft laws that have emerged in public, we can cite a few sources: first, there are the methodological guides, the ministerial sheets, the alert messages, then a 2 guide, then the recommendations, then the guidelines. - The logic was that of national guidelines taken and disseminated to regional health agencies that would then declinate these guidelines from a more territorial point of view. [...]