C-33/74

judgment of 3. 12. 1974 — case 33/74

established in the State in which the applicable to him if he were estab­ service is provided, where the person lished within that State. providing the service would escape Accordingly the requirement that from the ambit of those rules by persons whose functions are to assist being established in another Member the administration of justice must be State. permanently established for pro­ fessional purposes within the jurisdic­ Likewise, a Member State cannot be tion of certain courts or tribunals denied the right to take measures to cannot be considered incompatible prevent the exercise by a person with the provisions of Articles 59 and providing services whose activity is 60, where such requirement is objec­ entirely or principally directed tively justified by the need to ensure towards its territory of the freedom observance of professional rules of guaranteed by Article 59 for the conduct connected, in particular, with purpose of avoiding the professional the administration of justice and with rules of conduct which would be 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

VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

JUDGMENT

Facts

JUDGMENT OF 3. 12. 1974 — CASE 33/74

the oral procedure without any prelimi­ this time limit, the obligation has not nary inquiry. been fulfilled.

This is the In the procedure before the Court, the conclusion to be drawn in particular appellant in the main action was rep from Articles 64 and 65 of the Treaty resented by M. G. J. M. Kortmann, the which contain provisions which are not Government of Ireland by Liam J. to be found in the chapter concerning Lysaght, Chief State Solicitor, the the right of establishment. Government of the United Kingdom by (a) In Article 64, the Member States W. H. Godwin, the Government of the declared their readiness to undertake the Federal Republic by Erich Bülow, Mini liberalization of services beyond the sterialdirigent at the Federal Ministry of extent required by directives issued Justice and the Commission by its Legal pursuant to Article 63 (2), if their Adviser, Jacques H. J. Bourgeois.

This Articles 64 and 65 have lost their real article might be construed as requiring significance since the end of the tran that, as long as restrictions on freedom sitional period; Article 65, however, to provide services have not been abol prohibits restrictions on freedom to ished, the restrictions imposed by each provide services involving discrimination Member State on the free provision of based on residence. Provisions which, services within its territory must not like Articles 59 and 60 of the EEC distinguish between the nationals of the Treaty, impose on Member States an various other Member States, but obligation which they must discharge without imposing on each Member State within a specific period of time become an obligation to accord to the nationals directly applicable when, on expiry of of other Member States the same treat

(c) In any case, Articles 59 and 60 transitory nature of the provision of should only be held to be directly services, in contrast with the permanence applicable in so far as they prohibit implied in the concept of establishment, restrictions which discriminate between the problems of control and discipline are even more serious in the field of the persons on grounds of nationality, and also possibly of residence. The removal provision of services, and the freedom to of other restrictions on freedom to provide a service requires a correspond­ provide services necessitates the resol­ ing protection for those utilizing the ution of problems which arise (inter alia) service. The only satisfactory solution to from the different laws and regulations these difficulties is by means of which are applicable, from the different Community directives. conditions in which services are rendered The Government of the Federal Republic in the various Member States and from of Germany considers that taking into the fact that Member States require dif­ account the interpretation which must be ferent educational and professional given to Article 59 there is no difficulty qualifications, in particular the body of in recognizing that this article has direct knowledge required for the practice of effect on the expiry of the transitional the legal profession and the systems period. The rule of equality of treatment within which such practice is in fact with nationals may, by definition, be conducted. These and other difficulties invoked directly by nationals of all can only be resolved by means of Member States and this applies in par­ directives of the Council under Article 63 ticular in the field of freedom to provide (2) of the Treaty. services.

In conformity with the case-law of the unconditional: apart from the section Court, Article 59 must be considered as relating to the progressive nature of the a whole. Moreover, the execution of obligation, Article 59 contains no Article 59 is not conditional upon the particular condition precedent to its implementation of a programme of execution. The exceptions to freedom to progressive measures; it prescribes, in provide services, provided for in Articles categorical terms, the abolition of 55 and 56, are sufficiently precise and, restrictions on freedom to provide since they constitute a derogation from

The (a) Article 59 and the third paragraph of general programme for the abolition of Article 60 establish a specific rule in a restrictions on freedom to provide clear and precise manner: by Article 59 services was adopted by the Council on each Member State is obliged not to sub 18 December 1961 (OJ 1962, p. 32) and, ject services provided by Community furthermore, it follows from the case-law nationals established in other Member of the Court, in particular the Reyners States to conditions which are more judgment, that, failure, during the restrictive than those which would govern transitional period, to issue the directives those services if they had been provided prescribed by Article 63 (2) does not by nationals established within its own prevent Article 59 from being recognized

(b) Taking into account its similarity (d) The first question put by the with Article 52, the obligation under Centrale Raad van Beroep should Article 59 must be recognized as therefore be answered as follows:

VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

These measures prohibits rules requiring habitual of coordination, based on Articles 66 residence. Moreover, it must be stated and 57, are to be distinguished from the measures to be taken for the abolition of that the reference to the temporary nature of the provision of services does restrictions on freedom to provide not relate in any way to its frequency. services; these were the subject, during the transitional period, of the provisions The Government of the United Kingdom of Article 63. As a general rule it is not considers that where a condition im enough that restrictions based on posed by a Member State on its own nationality have been abolished in nationals requires a residential qualifi compliance with Articles 59 and 63; the cation, and the condition does not effective realization of freedom to discriminate between nationals of the provide services also requires, in host State and nationals of other Member particular as regards the professions, States, the condition would not be measures of harmonization and inconsistent with the provisions of the coordination. In other words, national

It is such other persons. appropriate, in this respect, to recall that The Government of the Federal Republic there exist rules which, while not of Germany stresses the importance of formally establishing any distinction the problems involved in the between nationals and foreigners, do, in interpretation of Articles 59 and 60 and fact, work to the disadvantage, above the significance which the Court's replies all, if not exclusively, of foreign may have for, among others, the legal nationals. profession and in particular the It follows from the very idea of freedom profession of advocate. to provide services, and in particular The fundamental rules on the right of from the third paragraph of Article 60, establishment and the provision of that all restrictions precluding the services are broadly similar. Articles 59 performance of a service beyond a and 60, like Article 52 on freedom of national frontier are in principle establishment, enshrine, in the field of incompatible with the Treaty.

JUDGMENT OF 3. 12. 1974 — CASE 33/74

On ascertain whether they are essential and the other hand, the obligation to have an necessary for the exercise of the activity address for service in the Netherlands, in question. prescribed by Article 90 of the Beroepswet, does not come within the Articles 59 and 60 prescribe the prohibition of Article 59, since it does application of the principle of equality of treatment with nationals in the field of not require a qualifying period of residence in the host country and does freedom to provide services, but not the not apply to an economic activity falling mutual recognition of diplomas, certificates and other evidence of formal within the ambit of the Treaty.

community. the service is provided, finds expression The Commission observes that the aim in the third paragraph of Article 60 of of the Treaty, in the field of freedom to the EEC Treaty. The result of this provide services, is to prevent the provision is that a Member State cannot provision of services from being made subject the exercise of an activity or more difficult in any way, either directly profession by nationals established in or indirectly, from the point of view of other Member States to conditions the person receiving the service or of the which are stricter than those imposed on service itself, by reason of the fact that it persons established within its own is performed beyond the frontier of a territory. These restrictions are not Member State, irrespective of the necessarily evidenced by differences in nationality of the parties concerned. In treatment based on nationality. this respect, freedom to provide services Differences between the respective legal is similar to the free movement of goods provisions of Member States which lead based on Articles 12 and 13 of the EEC to restrictions, in particular as regards Treaty. requirements relating to professional Furthermore, there can be no knowledge or rules regulating the discrimination on the basis of exercise of a profession, are not to be

VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

a Member State treats the person country where he intends to provide providing services differently from the service; persons established within the territory of the host country. This type of — discriminate between, on the one obstacle falls within the provisions of hand, Community nationals who are established within the Member State Article 57 of the EEC Treaty, which is where the service is provided and, on applicable, through Article 66, to the other hand, those who are services. As regards those measures established outside that State; which apply indiscriminately to nationals and foreigners, it is essential to ascertain — distinguish between persons, in the whether they exceed the specific effects field of the provision of services, on which they are intended to have. the basis of nationality. In respect of the present case, it must be borne in mind that Articles 59 and 60 of The following reply might therefore be given to the second question: the EEC Treaty have as their purpose, within the framework of the provisions Within the framework of the provisions relating to services, to eliminate any relating to freedom to provide services, obstacle created by a Member State by Articles 59 and 60 of the EEC Treaty reason solely of the fact that the activity have as their aim the abolition of any concerned entails the crossing of restriction on freedom to provide frontiers. Such restrictions arise from services imposed by a Member State legal provisions or restrictive practices which is based on the fact that the said which: provision of services is an act which, — oblige the person providing the even though performed by a national of service to maintain his habitual another Member State, nevertheless residence or simply to reside in the entails the crossing of frontiers.

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

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.

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.

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 uncondi­ tional 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.

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;

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.

DELIVERED ON 13 NOVEMBER 1974 <apnote>1</apnote>

Mr President, Treaty of Rome, was therefore the Members of the Court, matter in issue in that previous case. The preliminary questions referred to On 21 June 1974 you gave a preliminary you by the Centrale Raad van Beroep, ruling requested of you by the Conseil the Netherlands court of last instance in d'État of Belgium. The questions put to social security matters, raise, in the field you concerned the interpretation of of the provision of services dealt with in Articles 52 and 55 of the Treaty Chapter 3 (Articles 59 to 66) of the establishing the European Economic Treaty, problems similar to those which Community. One of the questions you you decided in the Reyners Judgment were asked was whether the provisions which I have just recalled. of Article 52 of the Treaty were, since I will therefore have occasion to refer to the end of the transitional period, the general purport of that decision, in directly applicable to the profession of so far at least as Chapter 3 of the Treaty avocat despite the absence of directives is inspired by principles similar to those as prescribed by Articles 54 (2) and 57 governing freedom of establishment (1). under Chapter 2. The right of establishment, as it is However, I must first of all set out the defined in Chapter 2 of Title III of the facts giving rise to the main action.

1 — Translated from the French.