judgment of 3. 12. 1974 — case 33/74
established in the State in which the
service is provided, where the person
providing the service would escape
from the ambit of those rules by
being established in another Member
State.
Likewise, a Member State cannot be
denied the right to take measures to
prevent the exercise by a person
providing services whose activity is
entirely or principally directed
towards its territory of the freedom
guaranteed by Article 59 for the
purpose of avoiding the professional
rules of conduct which would be
applicable to him if he were established
within that State.
Accordingly the requirement that
persons whose functions are to assist
the administration of justice must be
permanently established for professional
purposes within the jurisdiction
of certain courts or tribunals
cannot be considered incompatible
with the provisions of Articles 59 and
60, where such requirement is objectively
justified by the need to ensure
observance of professional rules of
conduct connected, in particular, with
the administration of justice and with
respect for professional ethics.
In Case 33/74
Reference to the Court under Article 177 of the EEC Treaty by the Centrale
Raad van Beroep (Netherlands court of last instance in social security
matters) for a preliminary ruling in the action pending before that court
between
Johannes HENRICUS MARIA VAN BINSBENGEN, fitter, residing at Beesel
(Netherlands),
and
BESTUUR van DE BEDRIJFSVERENIGING VOOR de METAALNIJVERHEID, (Board of
the Trade Association of the Engineering Industry), registered at The Hague,
on the interpretation of Articles 59 and 60 of the EEC Treaty relating to
freedom to provide services within the Community,
THE COURT
composed of: R. Lecourt, President, C. Ó Dálaigh and Lord Mackenzie Stuart
(Presidents of Chambers), A. M. Dormer, R. Monaco, J. Mertens de Wilmars,
P. Pescatore (Rapporteur), H. Kutscher and M. Sørensen, Judges,
Advocate-General: H. Mayras,
Registrar: A. Van Houtte,
gives the following
1300
VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID
JUDGMENT
Facts
The facts of the case, the course of the
procedure and the observations submitted
under Article 20 of the Protocol
on the Statute of the Court of Justice of
the EEC may be summarized as follows:
I — Facts and procedure
By judgment of 24 April 1972, the Raad
van Beroep (court of first instance in
social security matters) of Roermond
dismissed an action brought by J. H. M.
van Binsbergen against the Board of the
Bedrijfsvereniging voor de Metaalnijverheid
(Trade Association of the Engineering
Industry) concerning the application
of the Law on Unemployment
(Werkloosheidswet).
By power of attorney dated 5 July 1972,
van Binsbergen authorized M. G. J.
M. Kortmann, a Netherlands national
established in the Netherlands, to bring,
on his behalf, an appeal against this
decision before the Centrale Raad van
Beroep (court of last instance in social
security matters) and to represent him in
the proceedings before that court.
On 30 November 1973, the Assistant
Registrar of the Centrale Raad van Beroep
informed Mr Kortmann that he was
no longer entitled to act as Mr van Binsbergen's
representative ad litem or
adviser. Article 48 (1) of the Beroepswet
(Law of 2 February 1955 on the organization
and rules of procedure of Netherlands
social service courts) provides that
only persons established in the Netherlands
can act as legal representatives or
advisers; during the course of the proceedings
Mr Kortmann had transferred
his habitual residence from Zeist, in the
Netherlands, to Neeroeteren, in Belgium.
Before the Centrale Raad van Beroep,
Mr Kortmann invoked Article 59 of the
EEC Treaty providing for the progressive
abolition, during the transitional
period, of restrictions on freedom to
provide services within the Community
and claimed that this provision prevents
the application of Article 48 of the
Beroepswet.
By order of 18 April 1974 the Centrale
Raad van Beroep decided, in accordance
with Article 177 of the EEC Treaty, to
stay the proceedings until the Court of
Justice had given a preliminary ruling on
the following questions:
1. Are Articles 59 and 60 of the EEC
Treaty directly applicable and do they
create individual rights which the
national courts must protect?
2. If the answer to the first question is
affirmative, what is the meaning of
these Articles, particularly the final
sentence of Article 60?
The order of the Centrale Raad van
Beroep was lodged at the Registry of the
Court on 15 May 1974.
In accordance with Article 20 of the
Protocol on the Statute of the Court of
Justice of the EEC, written observations
were submitted on 15 July 1974 by the
Commission of the European Communities,
on 31 July by the Government of
Ireland and on 6 August by the Government
of the United Kingdom of Great
Britain and Northern Ireland.
The Court, having heard the report of
the Judge-Rapporteur and the views of
the Advocate-General, decided to open
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JUDGMENT OF 3. 12. 1974 — CASE 33/74
the oral procedure without any preliminary
inquiry.
The appellant in the main action, the
Government of the Federal Republic of
Germany and the Commission presented
their oral observations and replied to
questions put by the Court at the hearing
on 9 October 1974.
The Advocate-General delivered his
opinion on 30 October 1974.
In the procedure before the Court, the
appellant in the main action was represented
by M. G. J. M. Kortmann, the
Government of Ireland by Liam J.
Lysaght, Chief State Solicitor, the
Government of the United Kingdom by
W. H. Godwin, the Government of the
Federal Republic by Erich Bülow, Ministerialdirigent
at the Federal Ministry of
Justice and the Commission by its Legal
Adviser, Jacques H. J. Bourgeois.
II — Observations submitted
to the Court
A — The first question
The appellant in the main action considers
that the principles deduced from
Article 52 of the EEC Treaty by the
Court of Justice (Judgment of 21 June
1974 in Case 2/74, Reyners) also apply
to Article 59. This article imposes, in the
field of freedom to provide services, a
well — defined obligation, the fulfilment
of which was to facilitated by, but not
conditional upon, the implementation of
a programme of progressive measures.
Articles 64 and 65 have lost their real
significance since the end of the transitional
period; Article 65, however,
prohibits restrictions on freedom to
provide services involving discrimination
based on residence. Provisions which,
like Articles 59 and 60 of the EEC
Treaty, impose on Member States an
obligation which they must discharge
within a specific period of time become
directly applicable when, on expiry of
this time limit, the obligation has not
been fulfilled.
The Government of Ireland submits that
Articles 59 and 60 of the EEC Treaty
should not be regarded as having direct
effect, even though the transitional
period has expired, save to the extent to
which express provision is made for such
a direct effect in the subsequent provisions
of the chapter relating to freedom
to provide services. This is the
conclusion to be drawn in particular
from Articles 64 and 65 of the Treaty
which contain provisions which are not
to be found in the chapter concerning
the right of establishment.
(a) In Article 64, the Member States
declared their readiness to undertake the
liberalization of services beyond the
extent required by directives issued
pursuant to Article 63 (2), if their
general economic situation and the
situation of the economic sector concerned
so permit. They therefore
regarded the liberalization of services as
requiring a detailed and careful process
of analysis and consideration from the
viewpoint of economic policy in each
Member State and felt that, subject to
Article 65, this object of the Community
is to be achieved only within the limits
of the directives of the Council under
Article 63, and such action as may be
taken by Member States under Article
64.
(b) Article 65 of the Treaty provides
that as long as restrictions on freedom to
provide services have not been abolished,
each Member State shall apply such
restrictions without distinction on
grounds of nationality or residence. This
article might be construed as requiring
that, as long as restrictions on freedom
to provide services have not been abolished,
the restrictions imposed by each
Member State on the free provision of
services within its territory must not
distinguish between the nationals of the
various other Member States, but
without imposing on each Member State
an obligation to accord to the nationals
of other Member States the same treat­
1302
VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID
ment as that which it gives to its own
nationals. However this may be, Article
65 sets the limit to the extent to which
Articles 59 and 60 may be held to be
directly applicable. The principles contained
in the Judgment of the Court of
21 June 1974 in Case 2/74 (Reyners v
The Belgian State), concerning freedom
of establishment should not be applied
to the chapter concerning the free provision
of services.
(c) In any case, Articles 59 and 60
should only be held to be directly
applicable in so far as they prohibit
restrictions which discriminate between
persons on grounds of nationality, and
also possibly of residence. The removal
of other restrictions on freedom to
provide services necessitates the resolution
of problems which arise (inter alia)
from the different laws and regulations
which are applicable, from the different
conditions in which services are rendered
in the various Member States and from
the fact that Member States require different
educational and professional
qualifications, in particular the body of
knowledge required for the practice of
the legal profession and the systems
within which such practice is in fact
conducted. These and other difficulties
can only be resolved by means of
directives of the Council under Article 63
(2) of the Treaty.
The Government of the United Kingdom
emphasizes that there are many points of
similarity between the chapters of the
EEC Treaty dealing respectively with the
right of establishment and the freedom
to provide services. Following its reasoning
in the Reyners Judgment, the Court
may therefore hold that, since the end of
the transitional period, Articles 59 and
60 have been directly applicable notwithstanding
that the directives provided for
in Articles 63 (2) and 57 (1) may not
have been issued in respect of a given
field. These directives were intended to
fulfil two functions: the first being to
eliminate obstacles in the way of attaining
freedom (to provide services) during
the transitional period, the second being
to introduce into the law of Member
States a set of provisions intended to
facilitate the effective exercise of this
freedom for the purpose of assisting
economic and social interpenetration
within the Community in the sphere of
activities as self-employed persons.
The continuing importance of the second
function is at least as great in connexion
with the provision of services as in the
field of establishment. In view of the
transitory nature of the provision of
services, in contrast with the permanence
implied in the concept of establishment,
the problems of control and discipline
are even more serious in the field of the
provision of services, and the freedom to
provide a service requires a corresponding
protection for those utilizing the
service. The only satisfactory solution to
these difficulties is by means of
Community directives.
The Government of the Federal Republic
of Germany considers that taking into
account the interpretation which must be
given to Article 59 there is no difficulty
in recognizing that this article has direct
effect on the expiry of the transitional
period. The rule of equality of treatment
with nationals may, by definition, be
invoked directly by nationals of all
Member States and this applies in particular
in the field of freedom to provide
services.
It is necessary, however, to have regard
to disguised restrictions on this freedom,
which are prohibited, and to distinguish
them from the permitted restrictions,
which must be progressively abolished
by harmonization or by coordination.
The question arises whether a condition
relating to residence constitutes a
disguised restriction, especially if it is
formulated in such a general manner
that it can, in fact, be satisfied only by
nationals. That is a problem which must
be judged in the light of each individual
case; the question remains whether, even
after the expiry of the transitional
period, it is not necessary to issue
directives based on Article 59 so as
to put an end to disguised restrictions.
1303
JUDGMENT OF 3. 12. 1974 — CASE 33/74
In conformity with the case-law of the
Court, Article 59 must be considered as
a whole. Moreover, the execution of
Article 59 is not conditional upon the
implementation of a programme of
progressive measures; it prescribes, in
categorical terms, the abolition of
restrictions on freedom to provide
services. Article 64 has, since the end of
the transitional period, become superfluous
and does not preclude the direct
applicability of Article 59.
In reply to the first question, it must be
stated that Articles 59 and 60 are directly
applicable.
The Commission is of the opinion that
the question of the direct applicability of
Articles 59 and 60 of the EEC Treaty
presupposes a preliminary examination
of their wording and scope. Without
prejudice to the observations submitted
in relation to the second question, the
following statements can be made in the
light of the criteria defined in the caselaw
of the Court in relation to direct
effect:
(a) Article 59 and the third paragraph of
Article 60 establish a specific rule in a
clear and precise manner: by Article 59
each Member State is obliged not to subject
services provided by Community
nationals established in other Member
States to conditions which are more
restrictive than those which would govern
those services if they had been provided
by nationals established within its own
territory. The meaning of the concept
'restriction' is clear, as appears in particular
from its use in Article 62,
which is a provision universally
recognized to be directly applicable. The
national court does not have to enter
into more complex considerations when
dealing with cases relating to the
provision of services than with cases
involving other Articles of the Treaty
which the Court has recognized to be
directly applicable.
(b) Taking into account its similarity
with Article 52, the obligation under
Article 59 must be recognized as
unconditional: apart from the section
relating to the progressive nature of the
obligation, Article 59 contains no
particular condition precedent to its
execution. The exceptions to freedom to
provide services, provided for in Articles
55 and 56, are sufficiently precise and,
since they constitute a derogation from
the general rules of the Treaty, they
must be strictly interpreted. Nor is the
rule contained in the third paragraph of
Article 60 subject to any condition.
(c) In relation to the criterion
according to which the implementation
of the obligation must not be dependent
on the adoption of further measures by
the Member States or by the Community
institutions, Article 59, considered in
conjunction with the third paragraph of
Article 60, does not present a more
complex situation than Article 52, which
the Court has recognized to be directly
applicable: the phrase 'within the
framework of the provisions set out
below' refers to the implementing
measures to be adopted by the
Community pursuant to Article 63. The
general programme for the abolition of
restrictions on freedom to provide
services was adopted by the Council on
18 December 1961 (OJ 1962, p. 32) and,
furthermore, it follows from the case-law
of the Court, in particular the Reyners
judgment, that, failure, during the
transitional period, to issue the directives
prescribed by Article 63 (2) does not
prevent Article 59 from being recognized
as having direct effect. Article 59
imposes a well-defined obligation, the
fulfilment of which was to be facilitated
by, but not conditional upon, the
implementation of a programme of
progressive measures. The directives
relating to this matter, which were to be
issued by the Council, do not confer
upon it, among other things, a
discretionary power to ensure the
application of the principle of equality of
treatment with nationals.
(d) The first question put by the
Centrale Raad van Beroep should
therefore be answered as follows:
1304
VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID
Article 59 and the third paragraph of
Article 60 of the EEC Treaty have been,
since the end of the transitional period,
directly applicable, notwithstanding the
possibile absence, in a particular field, of
the directives prescribed by Articles 63
and 57.
B — The second question
The appellant in the main action is of
the opinion that the third paragraph of
Article 60, in that it emphasizes the
temporary nature of the employment of
the person providing the service in the
country where that service is provided,
prohibits rules requiring habitual
residence. Moreover, it must be stated
that the reference to the temporary
nature of the provision of services does
not relate in any way to its frequency.
The Government of the United Kingdom
considers that where a condition imposed
by a Member State on its own
nationals requires a residential qualification,
and the condition does not
discriminate between nationals of the
host State and nationals of other Member
States, the condition would not be
inconsistent with the provisions of the
Treaty relating to freedom to provide
services if there were circumstances under
which the condition could properly by
justified. For example, persons carrying
on activities involving special risk to
others dealing with such persons may
validly be subjected to conditions based
on residence for the due protection of
such other persons.
The Government of the Federal Republic
of Germany stresses the importance of
the problems involved in the
interpretation of Articles 59 and 60 and
the significance which the Court's replies
may have for, among others, the legal
profession and in particular the
profession of advocate.
The fundamental rules on the right of
establishment and the provision of
services are broadly similar. Articles 59
and 60, like Article 52 on freedom of
establishment, enshrine, in the field of
freedom to provide services, the
principle of the prohibition of any
discrimination on grounds of nationality
established in Article 7 of the Treaty.
This interpretation is endorsed a
contrario by Article 67. It is also dictated
by the general scheme of the Treaty:
Article 66 declares that the provisions of
Articles 55 to 58, therefore including
Article 57, apply to the chapter on the
provision of services. Directives are to be
issued for the mutual recognition of
diplomas and for the coordination of
national provisions concerning the
taking up and pursuit of activities as
self-employed persons. These measures
of coordination, based on Articles 66
and 57, are to be distinguished from the
measures to be taken for the abolition of
restrictions on freedom to provide
services; these were the subject, during
the transitional period, of the provisions
of Article 63. As a general rule it is not
enough that restrictions based on
nationality have been abolished in
compliance with Articles 59 and 63; the
effective realization of freedom to
provide services also requires, in
particular as regards the professions,
measures of harmonization and
coordination. In other words, national
rules which make the provision of
services across a frontier more difficult or
impossible do not fall within the
provisions of Article 59, requiring the
full realization of the principle of
equality of treatment with nationals,
unless they treat nationals of other
Member States less favourably. It is
appropriate, in this respect, to recall that
there exist rules which, while not
formally establishing any distinction
between nationals and foreigners, do, in
fact, work to the disadvantage, above
all, if not exclusively, of foreign
nationals.
It follows from the very idea of freedom
to provide services, and in particular
from the third paragraph of Article 60,
that all restrictions precluding the
performance of a service beyond a
national frontier are in principle
incompatible with the Treaty. Consequently,
provisions which demand that
1305
JUDGMENT OF 3. 12. 1974 — CASE 33/74
the person providing the service must
reside or be established within the
country where the service is provided
must in principle be abolished. However,
an exception should be made for provisions
which fix residential conditions
applicable to the exercise, within a country,
of a profession by nationals of the
country; such provisions are legitimate
in the case of lawyers. In such a case, the
restrictions at issue must be examined to
ascertain whether they are essential and
necessary for the exercise of the activity
in question.
Articles 59 and 60 prescribe the
application of the principle of equality of
treatment with nationals in the field of
freedom to provide services, but not the
mutual recognition of diplomas,
certificates and other evidence of formal
qualifications. They prohibit all express
discrimination against nationals of other
Member States and, in fact, all arbitrary
treatment of a less favourable nature;
conditions of residence or of establishment
are, in principle, prohibited
by the third paragraph of Article 60,
save for a number of exceptions justified,
as regards certain activities or
professions, by the protection of interests
of particular importance to the
community.
The Commission observes that the aim
of the Treaty, in the field of freedom to
provide services, is to prevent the
provision of services from being made
more difficult in any way, either directly
or indirectly, from the point of view of
the person receiving the service or of the
service itself, by reason of the fact that it
is performed beyond the frontier of a
Member State, irrespective of the
nationality of the parties concerned. In
this respect, freedom to provide services
is similar to the free movement of goods
based on Articles 12 and 13 of the EEC
Treaty.
Furthermore, there can be no
discrimination on the basis of
nationality. In the field of freedom to
provide services, this principle is
typically contravened by provisions
which lay down a condition of residence
or habitual residence in the country
where the activity is to be exercised: this
is the case with Article 48 (1) of the
Beroepswet. The latter in fact constitutes
an absolute restriction on freedom to
provide services; the requirement of
residence or habitual residence in the
country where the service is to be
provided is incompatible with the very
concept of the provision of services. On
the other hand, the obligation to have an
address for service in the Netherlands,
prescribed by Article 90 of the
Beroepswet, does not come within the
prohibition of Article 59, since it does
not require a qualifying period of
residence in the host country and does
not apply to an economic activity falling
within the ambit of the Treaty. Nor can
it be likened to restrictions which
conflict with the principle of equality of
treatment for foreigners and nationals.
As to those types of service the provision
of which entails a move by the person
providing the service to the country of
the person for whom the service is
intended, the prohibition of restrictions
differentiating between those who are
established in one State and who wish to
provide services in another and those
who are established in the State where
the service is provided, finds expression
in the third paragraph of Article 60 of
the EEC Treaty. The result of this
provision is that a Member State cannot
subject the exercise of an activity or
profession by nationals established in
other Member States to conditions
which are stricter than those imposed on
persons established within its own
territory. These restrictions are not
necessarily evidenced by differences in
treatment based on nationality.
Differences between the respective legal
provisions of Member States which lead
to restrictions, in particular as regards
requirements relating to professional
knowledge or rules regulating the
exercise of a profession, are not to be
considered as 'restrictions' within the
meaning of Article 59. In such cases, the
obstacle does not arise from the fact that
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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID
a Member State treats the person
providing services differently from
persons established within the territory
of the host country. This type of
obstacle falls within the provisions of
Article 57 of the EEC Treaty, which is
applicable, through Article 66, to
services. As regards those measures
which apply indiscriminately to nationals
and foreigners, it is essential to ascertain
whether they exceed the specific effects
which they are intended to have.
In respect of the present case, it must be
borne in mind that Articles 59 and 60 of
the EEC Treaty have as their purpose,
within the framework of the provisions
relating to services, to eliminate any
obstacle created by a Member State by
reason solely of the fact that the activity
concerned entails the crossing of
frontiers. Such restrictions arise from
legal provisions or restrictive practices
which:
— oblige the person providing the
service to maintain his habitual
residence or simply to reside in the
country where he intends to provide
the service;
— discriminate between, on the one
hand, Community nationals who are
established within the Member State
where the service is provided and, on
the other hand, those who are
established outside that State;
— distinguish between persons, in the
field of the provision of services, on
the basis of nationality.
The following reply might therefore be
given to the second question:
Within the framework of the provisions
relating to freedom to provide services,
Articles 59 and 60 of the EEC Treaty
have as their aim the abolition of any
restriction on freedom to provide
services imposed by a Member State
which is based on the fact that the said
provision of services is an act which,
even though performed by a national of
another Member State, nevertheless
entails the crossing of frontiers.
Law
1 By order of 18 April 1974, lodged at the Registry of the Court on 15 May,
the Centrale Raad van Beroep put to the Court, under Article 177 of the EEC
Treaty, questions relating to the interpretation of Articles 59 and 60 of the
Treaty establishing the European Economic Community concerning freedom to
provide services within the Community.
2 These questions arose incidentally, during the course of an action before the
said court, and are concerned with the admission before that court of the
person whom the appellant in the main action chose to act as his legal
representative.
3 It appears from the file that the appellant had entrusted the defence of his
interests to a legal representative of Netherlands nationality entitled to act for
parties before courts and tribunals where representation by an advocaat is not
obligatory.
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JUDGMENT OF 3. 12. 1974 — CASE 33/74
4 Since this legal representative had, during the course of the proceedings,
transferred his residence from the Netherlands to Belgium, his capacity to
represent the party in question before the Centrale Raad van Beroep was
contested on the basis of a provision of Netherlands law under which only
persons established in the Netherlands may act as legal representatives before
that court.
5 In support of his claim the person concerned invoked the provisions of the
Treaty relating to freedom to provide services within the Community, and
the Centrale Raad van Beroep referred to the Court two questions relating
to the interpretation of Articles 59 and 60 of the Treaty.
The actual scope of Articles 59 and 60
6 The Court is requested to interpret Articles 59 and 60 in relation to a provision
of national law whereby only persons established in the territory of the State
concerned are entitled to act as legal representatives before certain courts or
tribunals.
7 Article 59, the first paragraph of which is the only provision in question in
this connexion, provides that: 'Within the framework of the provisions set
out below, restrictions on freedom to provide services within the Community
shall be progressively abolished during the transitional period in respect of
nationals of Member States who are established in a State of the Community
other than that of the person for whom the services are intended'.
8 Having defined the concept 'services' within the meaning of the Treaty in its
first and second paragraphs, Article 60 lays down in the third paragraph that,
without prejudice to the provisions of the chapter relating to the right of
establishment, the person providing a service may, in order to provide that
service, temporarily pursue his activity in the State where the service is
provided, under the same conditions as are imposed by that State on its own
nationals.
9 The question put by the national court therefore seeks to determine whether
the requirement that legal representatives be permanently established within
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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID
the territory of the State where the service is to be provided can be reconciled
with the prohibition, under Articles 59 and 60, on all restrictions on freedom
to provide services within the Community.
10 The restrictions to be abolished pursuant to Articles 59 and 60 include all
requirements imposed on the person providing the service by reason in particular
of his nationality or of the fact that he does not habitually reside in
the State where the service is provided, which do not apply to persons
established within the national territory or which may prevent or otherwise
obstruct the activities of the person providing the service.
11 In particular, a requirement that the person providing the service must be
habitually resident within the territory of the State where the service is to be
provided may, according to the circumstances, have the result of depriving
Article 59 of all useful effect, in view of the fact that the precise object of
that Article is to abolish restrictions on freedom to provide services imposed
on persons who are not established in the State where the service is to be
provided.
12 However, taking into account the particular nature of the services to be provided,
specific requirements imposed on the person providing the service cannot
be considered incompatible with the Treaty where they have as their purpose
the application of professional rules justified by the general good — in particular
rules relating to organization, qualifications, professional ethics, supervision
and liability — which are binding upon any person established in the
State in which the service is provided, where the person providing the service
would escape from the ambit of those rules being established in another
Member State.
13 Likewise, a Member State cannot be denied the right to take measures to
prevent the exercise by a person providing services whose activity is entirely
or principally directed towards its territory of the freedom guaranteed by
Article 59 for the purpose of avoiding the professional rules of conduct which
would be applicable to him if he were established within that State; such a
situation may be subject to judicial control under the provisions of the
chapter relating to the right of establishment and not of that on the provision
of services.
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JUDGMENT of 3. 12. 1974 — case 33/74
14 In accordance with these principles, the requirement that persons whose
functions are to assist the administration of justice must be permanently
established for professional purposes within the jurisdiction of certain courts
or tribunals cannot be considered incompatible with the provisions of
Articles 59 and 60, where such requirement is objectively justified by the
need to ensure observance of professional rules of conduct connected, in
particular, with the administration of justice and with respect for professional
ethics.
15 That cannot, however, be the case when the provision of certain services in
a Member State is not subject to any sort of qualification or professional
regulation and when the requirement of habitual residence is fixed by
reference to the territory of the State in question.
16 In relation to a professional acitivity the exercise of which is similarly
unrestricted within the territory of a particular Member State, the requirement
of residence within that State constitutes a restriction which is incompatible
with Articles 59 and 60 of the Treaty if the administration of justice can
satisfactorily be ensured by measures which are less restrictive, such as the
choosing of an address for service.
17 It must therefore be stated in reply to the question put to the Court that
the first paragraph of Article 59 and the third paragraph of Article 60 of
the EEC Treaty must be interpreted as meaning that the national law of a
Member State cannot, by imposing a requirement as to habitual residence
within that State, deny persons established in another Member State the
right to provide services, where the provision of services is not subject to
any special condition under the national law applicable.
The question of the direct applicability of Articles 59 and 60
18 The Court is also asked whether the first paragraph of Article 59 and the
third paragraph of Article 60 of the EEC Treaty are directly applicable and
create individual rights which national courts must protect.
19 This question must be resolved with reference to the whole of the chapter
relating to services, taking account, moreover, of the provisions relating to
the right of establishment to which reference is made in Article 66.
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20 With a view to the progressive abolition during the transitional period of the
restrictions referred to in Article 59, Article 63 has provided for the drawing
up of a 'general programme' — laid down by Council Decision of 18 December
1961 (1962, p. 32) — to be implemented by a series of directives.
21 Within the scheme of the chapter relating to the provision of services, these
directives are intended to accomplish different functions, the first being to
abolish, during the transitional period, restrictions on freedom to provide
services, the second being to introduce into the law of Member States a set
of provisions intended to facilitate the effective exercise of this freedom, in
particular by the mutual recognition of professional qualifications and the
coordination of laws with regard to the pursuit of actitivities as self-employed
persons.
22 These directives also have the task of resolving the specific problems
resulting from the fact that where the person providing the service is not
established, on a habitual basis, in the State where the service is performed
he may not be fully subject to the professional rules of conduct in force in
that State.
23 As regards the phased implementation of the chapter relating to services,
Article 59, interpreted in the light of the general provisions of Article 8 (7)
of the Treaty, expresses the intention to abolish restrictions on freedom to
provide services by the end of the transitional period, the latest date for
the entry into force of all the rules laid down by the Treaty.
24 The provisions of Article 59, the application of which was to be prepared
by directives issued during the transitional period, therefore became unconditional
on the expiry of that period.
25 The provisions of that article abolish all discrimination against the person
providing the service by reason of his nationality or the fact that he is
established in a Member State other than that in which the service is to be
provided.
26 Therefore, as regards at least the specific requirement of nationality or of
residence, Articles 59 and 60 impose a well-defined obligation, the fulfilment
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JUDGMENT OF 3. 12. 1974 — CASE 33/74
of which by the Member States cannot be delayed or jeopardized by the
absence of provisions which were to be adopted in pursuance of powers
conferred under Articles 63 and 66.
27 Accordingly, the reply should be that the first paragraph of Article 59 and
the third paragraph of Article 60 have direct effect and may therefore be
relied on before national courts, at least in so far as they seek to abolish any
discrimination against a person providing a service by reason of his nationality
or of the fact that he resides in a Member State other than that in which
the service is to be provided.
Costs
28/29 The costs incurred by the Government of Ireland, the Government of the
United Kingdom of Great Britain and Northern Ireland, the Government
of the Federal Republic of Germany and the Commission of the European
Communities, which have submitted observations to the Court, are not
recoverable and as these proceedings are, in so far as the parties to the
main action are concerned, a step in the action pending before the Centrale
Raad van Beroep, costs are a matter for that court.
On those grounds,
THE COURT
in answer to the questions referred to it by the Centrale Raad van Beroep
by order of 18 April 1974, hereby rules:
1. The first paragraph of Article 59 and the third paragraph of Article 60
of the EEC Treaty must be interpreted as meaning that the national
law of a Member State cannot, by imposing a requirement as to
habitual residence within that State, deny persons established in another
Member State the right to provide services, where the provision of
services is not subject to any special condition under the national
law applicable;
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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID
2. The first paragraph of Article 59 and the third paragraph of Article
60 have direct effect and may therefore be relied on before national
courts, at least in so far as they seek to abolish any discrimination
against a person providing a service by reason of his nationality or of
the fact that he resides in a Member State other than that in which
the service is to be provided.
Lecourt Ó Dálaigh Mackenzie Stuart Donner Monaco
Mertens de Wilmars Pescatore Kutscher Sørensen
Delivered in open court in Luxembourg on 3 December 1974.
A. Van Houtte
Registrar
R. Lecourt
President
OPINION OF MR ADVOCATE-GENERAL MAYRAS
DELIVERED ON 13 NOVEMBER 1974 <appnote>1</appnote>
Mr President,
Members of the Court,
On 21 June 1974 you gave a preliminary
ruling requested of you by the Conseil
d'État of Belgium. The questions put to
you concerned the interpretation of
Articles 52 and 55 of the Treaty
establishing the European Economic
Community. One of the questions you
were asked was whether the provisions
of Article 52 of the Treaty were, since
the end of the transitional period,
directly applicable to the profession of
avocat despite the absence of directives
as prescribed by Articles 54 (2) and 57
(1).
The right of establishment, as it is
defined in Chapter 2 of Title III of the
Treaty of Rome, was therefore the
matter in issue in that previous case.
The preliminary questions referred to
you by the Centrale Raad van Beroep,
the Netherlands court of last instance in
social security matters, raise, in the field
of the provision of services dealt with in
Chapter 3 (Articles 59 to 66) of the
Treaty, problems similar to those which
you decided in the Reyners Judgment
which I have just recalled.
I will therefore have occasion to refer to
the general purport of that decision, in
so far at least as Chapter 3 of the Treaty
is inspired by principles similar to those
governing freedom of establishment
under Chapter 2.
However, I must first of all set out the
facts giving rise to the main action.
1 — Translated from the French.
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