France Update: Laser hair removal centers continue to be talked about…

The jurisprudential saga continues: initially consecrated by the Council of State, then confirmed by the Criminal Chamber of the Court of Cassation, it is the turn of the Civil Chamber to endorse the end of the monopoly of doctors in terms of pulsed light hair removal.

• Alignment of administrative and judicial jurisprudence

The practice of acts of hair removal with pulsed light by non-medical persons is no longer illegal for the criminal courts since a judgment rendered by the Criminal Chamber of the Court of Cassation on 31 March 2020¹.

Indeed, as we had already mentioned in an article of May 25, 2020, in this judgment, the Criminal Chamber of the Court of Cassation has aligned itself with the position reached by the Council of State in terms of pulsed light hair removal.

As a reminder, in this case, the Criminal Chamber was seized of the question of whether non-medical persons, practicing acts of hair removal with pulsed light, could be punished for the offense of illegal practice of medicine.

By replying in the negative, the High Criminal Court made a clear reversal of the case-law concerning the practice of acts of hair removal with pulsed light, considering that the prohibition on persons other than doctors performing such acts was contrary to Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU), guaranteeing the freedom of establishment and the freedom to provide services.

By taking up the various arguments raised by the Council of State, the Criminal Chamber has undeniably aligned itself with the position adopted by the administrative judge in a judgment delivered by the 1st and 4th chambers of the Council of State, on November 8, 2019²tags. Recall that in this judgment, the Council of State had pronounced the illegality, under European law, of the decree of 6 January 1962 reserving the practice of laser hair removal or pulsed light only to doctors(see our article published on 16 January 2020).

However, the solution adopted by the Criminal Chamber of the Court of Cassation differs from that adopted by the Council of State, in that it restricts the contribution of its decision to the sole activity of hair removal with pulsed light, without ruling on acts of laser hair removal, for which doubt continues to hover… even though the judgment of the Council of State targeted both types of hair removal.

In a second noticeable judgment of October 20, 2020³, the Criminal Chamber had the opportunity to confirm its position.

In this case, natural and legal persons were prosecuted before the Criminal Court for the illegal practice of medicine, for having practiced and allowed to practice acts of hair removal with pulsed light in beauty salons, without having the diploma of doctor.

The Rennes Court of Appeal having confirmed this conviction for illegal practice of medicine in a judgment of 18 September 2019, the defendants had appealed in cassation.

In its judgment of 20 October 2020, the Court of Cassation quashed the judgment delivered by the Rennes Court of Appeal, without reference, by repeating, identically, the terms of its recital of principle of 31 March 2020.

Indeed, after recalling that “the Council of State, in a judgment of 8 November 2019 (No. 424954), considered that the prohibition of hair removal with pulsed light by beauticians infringes, in so far as it reserves these methods of hair removal only to doctors of medicine, the freedom of establishment and the freedom to provide services guaranteed by Articles 49 and 56 TFEU”, the judges considered that:

– « in the first place, that prohibition is not justified since the devices in question may be acquired and used by private individuals and their use is authorised to beauticians for photo rejuvenation care which present risks identical to those concerning hair removal;

– in the second place, if hair removal with pulsed light is likely to have mild adverse effects, according to the report and opinion of the National Agency for Health Security (ANSES) of October and December 2016, and to be subject to restrictions for reasons of general interest, it does not follow that these acts of hair removal can only be performed by a doctor;

-Moreover, the French Government has notified the European Commission of a draft decree opening the practice of pulsed light hair removal to beauticians under certain training conditions ».

Therefore, ‘in the light of those factors, it must be held that the prohibition of pulsed light hair removal by persons other than doctors is contrary to the abovementioned articles of the TFEU. It follows that the defendants cannot be lawfully convicted of the illegal practice of medicine.”

These successive reversals of jurisprudence have recently prompted the National Disciplinary Chamber of the Order of Physicians (CDNOM) to show more leniency towards doctors who have practiced in laser hair removal centers alongside non-doctors illegally practicing laser hair removal.

Indeed in two decisions rendered on October 21, 2021⁴, the CDNOM has considerably reduced the sanctions pronounced by the Disciplinary Chamber of First Instance of Ile-de-France (CDPI) against two doctors prosecuted for complicity in the illegal practice of medicine, for having “covered” acts of laser hair removal performed by beauticians not authorized to do so, the facts being prior to the jurisprudence of the Council of State of 8 November 2019.

The CDPI had then pronounced, against the two doctors, the sanction of the prohibition to practice medicine for one year, including six months suspended, in the first case (No. 13860) and that of the removal from the roll of the Order of Physicians, in the second case (No. 13960).

However, in the first case (No 13860), the CDNOM considered that it had not been shown that the doctor in question had facilitated the illegal practice of medicine since that doctor ‘practised herself the acts of hair removal on patients referred by the centre or met in the context of the replacements made as a general practitioner ». However, given the failure to communicate his contract to the Departmental Council of the Order of Physicians within the legal period of one month, the CDNOM imposed the sanction of the warning.

In the second case (no. 13960), the CDNOM considered that the appellant doctor was justified “in relying on the decision of 8 November 2019 by which the Council of State ruled that the order of 6 January 1962 setting out the list of medical acts that can only be performed by doctors infringes the freedom of establishment and the freedom to provide services, as the 5 ° of its article 2 reserves the modes of hair removal with laser or pulsed light to doctors of medicine, to dismiss the complaint retained by the first judges of ignorance of article R.4127-30 of the Public Health Code” and pronounced only a reprimand against him.

In addition, in those two cases, the doctor concerned had left the laser hair removal centre at the time when he became aware of the latter’s dysfunctions, linked to the practice of laser hair removal by unauthorised beauticians, a circumstance which was taken into account by the CDNOM to alleviate the penalty imposed.

• Alignment of criminal and civil jurisprudence

While the position adopted by the criminal judge concerning the practice of pulsed light hair removal by non-medical people is now well anchored, the question remained on the civil level: would the Civil Chamber align itself with the solution adopted by the Criminal Chamber?

Seized of two cases concerning franchise agreements, the First Civil Chamber of the Court of Cassation came to bring, on May 19, 2021⁵, a new stone in the edifice of the jurisprudential evolution already well underway.

In this case, a franchise agreement had been concluded between a company (the franchisor) and a natural person (the franchisee) who wished to open an aesthetic institute to practice, among other things, acts of hair removal with pulsed light.

Having failed to obtain the financing hoped for, the franchisees in both cases invoked, with some bad faith, the nullity of the franchise agreement for unlawful cause. They argued that the practice of pulsed light hair removal by non-doctors, proposed by the franchisor, was an unlawful activity falling within the scope of an illegal practice of medicine, and that, consequently, it was not subject to an agreement.

In the first case (no. 19-25.749), the Court of Appeal concluded that the franchise agreement was lawful.

In reaching such a solution, the trial judges showed a certain audacity, considering that:

• « concerning depilation by pulsed light, the contradictory texts of the Public Health Code governing this area must be interpreted in the light of the European Regulation EU 2017/745 of 5 April 2017 adopted which will soon be applicable in the sector of the devices at issue, in particular Article XVI(5), which does not equate pulsed light equipment used on the human body with medical acts » ;

• many pulsed light hair removal centres are open without the public authorities banning their activity and pulsed light hair removal devices are available over the counter to the public;
• no implementing decree as referred to in Article L. 1151-3 of the Public Health Code⁶ did not intervene to prohibit the use of devices with pulsed light for aesthetic purposes.

In the second case (no. 20-17.779), the Court of Appeal, on the other hand, declared the franchise agreements null and void on the ground that they had an unlawful cause, thus refusing to follow the meaning of the reversals of jurisprudence cited above.

It is no great surprise that the judges of the First Civil Chamber rejected the appeal made by the franchisee in the first case, and quashed the judgment rendered by the Court of Appeal in the second case, on the ground that:

« the practice by a non-medical professional of pulsed light hair removal is no longer unlawful and that, although it may be subject to restrictions on grounds of public interest, it does not justify the cancellation of contracts which that professional may have concluded on the sole ground that they concern such a practice ».

To achieve this very predictable reversal of jurisprudence, the civil judges relied on the solution reached by the Criminal Chamber, a few months earlier, which had held that “non-medical persons practicing hair removal with pulsed light could not be legally condemned for the illegal practice of medicine”.

The opening of the practice of pulsed light hair removal to non-medical people remains at the heart of the concerns of the National Agency for Health Security (ANSES).

In an opinion published in June 2021 on the risks associated with intense pulsed light epilators⁷, ANSES has indeed warned of the dangers associated with the use of these devices. To prevent these risks and limit their undesirable effects, ANSES recommends regulating the market for pulsed light hair removal devices by placing these devices within an appropriate regulatory framework and by offering a common training base for professionals who use them.

Since 26 May 2021, European Regulation No 2017/745 on medical devices subjects certain devices for non-medical purposes, such as pulsed light hair removal devices, to the same regime as that applicable to medical devices.

Therefore, the placing on the market of these pulsed light hair removal devices is now regulated and subject to compliance with requirements similar to those applicable to medical devices.⁸ implementing technologies equivalent to pulsed light, such as laser: constitution of a file demonstrating the compliance of the device with the requirements of the European regulation, drafting of specifications for clinical studies of efficacy and safety, etc.

If the judicial courts now seem to be aligned with the end of the monopoly of doctors in terms of pulsed light hair removal, uncertainty remains regarding laser hair removal acts. Will the Court of Cassation, for the practice of these acts, align itself with the position adopted by the Council of State in its judgment of 8 November 2019? The answer, long awaited by health professionals and laser hair removal centers, will certainly not be long in coming, as this sector of activity is undeniably constantly evolving.

1 – Cass. crim., March 31, 2020, No. 19-85.121, Published in the Bulletin

2 – EC, 1-4 chr, 8 Nov. 2019, n° 424954, Lebon T.

3 – Cass. crim., 20 Oct. 2020, n° 19-86.718

4 – CNOM, 21 Oct. 2021, n° 13860 and n° 13960

5 – Cass. 1st civ., 19 May 2021, n° 19-25.749 and n° 20-17.779, Published in the bulletin

6 – Article L. 1151-3 of the Public Health Code “Acts with an aesthetic aim whose implementation presents a serious danger or a suspicion of serious danger to human health may be prohibited by decree after the opinion of the High Authority of Health. Any decision to lift the ban shall be taken in the same form.

7 – ANSES, Opinion and report on the risks associated with intense pulsed light (IPL) epilators, 10 June 2021

8 – Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No 178/2002 and Regulation (EC) No 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC. (O.O.U.E. of 05-05-2017)

By Nathalie Boudet-Gizardin and Mathilde Jannet, France, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact france@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 42 Brook Street, London W1K 5DB, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.