C-110/78

JUDGMENT OF 18. 1. 1979 — JOINED CASES 110 AND 111/78

established in a Member State other is provided by an employment agency than that in which the service is to be which comes under the public provided. administration of a Member State or

3. When the pursuit of the activity of fee- when the person providing the charging employment agencies for services holds in the Member State in entertainers is made subject in the which he is established a licence State in which the service is provided issued under conditions comparable to to the issue of a licence, that State those required by the State in which may not impose on the persons the service is provided and his providing the service who are established in another Member State activities are subject in the first State any obligation either to satisfy that to proper supervision covering all requirement or to act through a fee- employment agency activity whatever charging employment agency which may be the Member State in which holds such a licence when the service the service is provided.

In Joined Cases 110 & 111/78

REFERENCES to the Court under Article 177 of the EEC Treaty by the Tribunal de Première Instance de Tournai [Court of First Instance of Tournai] for a preliminary ruling in the proceedings pending before that court between

Case 110/78

1. Ministère Public,

2. Chambre Syndicale des Agents Artistiques et Impresarii de Belgique, A.S.B.L., having its office at Charleroi,

3. Albert Gérard, Liège,

and

MINISTÈRE PUBLIC AND A.S.B.L. v VAN WESEMAEL

1. Romano Follachio, Peruwelz (Belgium),

JUDGMENT

Facts and Issues

The facts, the procedure and the written and of the Representatives of the observations submitted under Article 20 Member States, pp. 3 and 7). of the Protocol on the Statute of the Within the framework of these Court of Justice of the EEC may be Programmes, and in application of summarized as follows: Articles 54 and 63 of the Treaty, on 12 January 1967 the Council adopted Directive 67/43/EEC concerning the I — Facts and written procedure attainment of freedom of establishment

and freedom to provide services in 1. In accordance with the provisions of respect of activities of self-employed Part Two, Title III, Chapters 2 and 3 of persons concerned with ... the the EEC Treaty providing for the provisions of certain "Business services abolition of restrictions on freedom of not elsewhere classified" (ISIC Group establishment and freedom to provide 839) (Official Journal, English Special services within the Community, on 18 Edition 1967, p. 3). December 1961 the Council adopted a "General Programme for the abolition of restrictions on freedom to provide services" and a "General Programme for the abolition of restrictions on

freedom of establishment" (Official Journal, English Special Edition, Second Series, IX. Resolutions of the Council

JUDGMENT OF 18. 1. 1979 — JOINED CASES 110 AND 111/78

It also defines Groups 841 and 842 as "Foreign employment agencies for enter- follows: tainers may not, in the absence of a reciprocal convention between Belgium Group 841: and their country, place anyone in "Motion picture production, distribution and projection Production and distribution of motion

pictures, and the operation of cinemas; services allied with motion picture production and distribution such as film processing, editing, renting and repairing of equipment; casting bureaus." Group 842: "Theatres and related services

Theatres, opera companies, concert organizations and stock companies; services such as theatrical employment

MINISTÈRE PUBLIC AND A.S.B.L. v VAN WESEMAEL

3. In February 1978 two prosecutions 4. The Tribunal de Première Instance were brought before the Tribunal de de Tournai found that, according to an Première Instance de Tournai [Court of interpretation by the departments of the First Instance of Tournai] Criminal Commission, fee-charging employment Chamber, under Article 27 of the Arrêté agencies for entertainers covered by the Royal of 28 November 1975 for Arrêté Royal of 28 November 1975 are infringement of the aforesaid Articles 6 classifiable not in Group 839 of the ISIC and 20 against: but in Group 842, which has not yet been liberalized. It observed that this (a) Willy Van Wesemael, a worker in a café, residing in Ath (Belgium) who interpretation would entitle it to hold was charged with having resorted to that the Arrêté Royal at issue conformed an unlicensed fee-charging to the EEC Treaty, since: employment agency in Belgium (in — The Arrêté Royal did not introduce this case the agency of Jean any new discriminatory measure, Poupaert) for the engagement of a because Articles 6 and 20 thereof re- variety artist, and enact Articles 5 and 15 of the Arrêté

Jean Poupaert (alias Jean-Pierre Royal of 10 April 1954 which was in Panir), employment agent for enter- force previously; tainers residing in Lille (France), who was charged with having procured the engagement of a variety artist for Mr Wesemael by a contract of 29 March 1976 without

acting through a fee-charging employment agency holding a licence in Belgium. (Case 110/78)

JUDGMENT OF 18. 1. 1979 — JOINED CASES 110 AND 111/78

persons concerned with: purpose of the oral procedure, and after requesting the Commission to give (1) matters of 'Real Estate' written answers to certain questions, it (excluding 6401) (ISIC Group opened the oral procedure. ex 640)

(2) the provision of certain 'Business II — Written observations sub- services not elsewhere classified' mitted under Article 20 of (ISIC Group 839) the Protocol on the Statute

in Article 3 (2) (a) thereof: 'private of the Court of Justice of the EEC employment agencies'?

employment agent for entertainers. It is meaningless and the liberalization of the merely a question of finding that, as far sectors concerned would be practically as that activity is concerned, since the paralysed. end of the transitional period the direct Mr Poupaert also argues that, even if, application of Articles 52 and 59 of the contrary to the case-law cited, the scope Treaty has required that provisions of of the Directive of 12 January 1967 had the law of Member States which involve to be assessed in order to establish discrimination on grounds of nationality whether or not the activity of placing or residence should be deprived of any entertainers in employment in the effect. Member States is liberalized, it would be In so far as the Belgian Arrêté Royal of found that that directive obviously 28 November 1975 makes foreign relates to the activity in question as it employment agents for entertainers refers to "private employment agencies" subject to discriminatory treatment in (Article 3 (2) (a)) and to "literary and relation to Belgian employment agents artistic activities" (Article 3 (2) (g)). for entertainers, it cannot be applied for Mr Poupaert concludes by proposing the simple reason that it contravenes that the questions asked should be Articles 52 and 59 of the Treaty, which answered as follows:

apply directly within the internal legal "1. Since the end of the transitional system of each Member State and take period the pursuit of the occupation precedence over any contrary provisions of employment agent for entertainers of national law. has been liberalized regardless of the The principle laid down in the Treaty is interpretation to be given to the that of freedom of establishment and Council Directive of 12 January freedom to provide services within the 1967 concerning the attainment of Community, and it necessarily follows freedom of establishment and

any discrimination pertaining to nati- operation of fee-charging employment onality or to the fact that a person agencies for entertainers under the legal resides in another Member State of conditions stipulated. Since the Office the Community. National de l'Emploi [National 2. In the alternative, the aforesaid Employment Bureau] is not yet ready to Directive of 12 January 1967 is carry out these specialized employment applicable to the pursuit of the agency tasks, it has made it its duty to combat the proliferation of clandestine activity of employment agent for entertainers, and in relation to that private employment agents unscrupu- lously exploiting both entertainers and activity has made obligatory the abolition of all restrictions on organizers of entertainments. For this freedom of establishment and on reason it is necessary to emphasize the strictly temporary, provisional and freedom to provide services." practically exceptional character of the contested provisions, which will cease to B. The Belgian Government first of all apply as soon as a public service for the points out that Article 20 of the Arrêté placing of these workers in employment Royal of 28 November 1975, which can be set up and organized. Moreover, contains the contested Belgian Article 10 of the Arrêté Royal gives the provisions, is strictly confined to re- competent minister power at any time enacting — without making them more not to renew licences (which are annual restrictive in any way — discriminatory and renewable by tacit agreement): (or allegedly discriminatory) provisions indeed this provision allows the granting already existing in national legislation, in of new licences to be co-ordinated with particular in Article 14 of the Arrêté the aim pursued by Convention No 96, Ministériel of 23 April 1955 which namely the progressive abolition of such implemented the Arrêté Royal of 10 fee-charging employment agencies as still April 1954. By so doing, the aforesaid exist. Article 20 neither contravenes nor in any way derogates from Article 62 of the The Belgian Government next mentions Title III of the Council's General Treaty, which provides for a standstill in restrictions on the freedom to provide Programme of 1962 for the abolition of services in fact attained at the date of restrictions on freedom to provide entry into force of the Treaty. services, in particular paragraph A of that title which lists the restrictive In the submission of the Belgian provisions and practices which constitute Government, it is also surprising to discriminatory treatment of foreigners in observe that the subject-matter of the relation to nationals, and it asserts that dispute concerns the "liberalization" neither the Arrêté Royal of 28 November within the Community framework of an 1975 nor the implementing Arrêté activity which in principle is prohibited Ministériel of 1 December 1975 comprise by international Convention No 96 any of the restrictive practices defined in adopted on 1 July 1949 by the General that Programme. Conference of the International Labour

fulfils the legal conditions which the Questions 1, 2 and 4, and submits that latter must fulfil. the activity in question does not appear In that context, Article 20 of the Arrêté to be covered by any liberalizing directive. However, even if it were so Royal of 28 November 1975 which is at covered, that fact would be immaterial in issue in this case does not, in the Belgian this case in view of the case-law of the Government's submission, display any Court. It follows from the judgment of 3 discriminatory character in relation to December 1974 in Case 33/74 Van foreigners (who in the present case are Binsbergen that "the provisions of Article Community citizens), because: 59, the application of which was to be — First, that provision does not refer to prepared by directives issued during the foreign nationals as such but to transitional period, ... became "foreign employment agencies for unconditional on the expiry of that entertainers". Thus, in the words of period". that provision, "a natural or legal However, this principle does not have person" who wishes to place a person the effect of making it superfluous for in employment in Belgium may not, the Council to adopt directives intended in the absence of a reciprocal to introduce into Member States' convention between Belgium and his legislation a body of provisions designed country, carry out that activity except to facilitate the effective exercise of through a fee-charging employment freedom to provide services. Neither agency (that is to say, another does it imply that all the provisions of natural or legal person) holding a the directives adopted before the expiry licence; of the transitional period have lapsed. — Secondly, Article 20 in no wise More generally, it is still useful to refer requires that the said fee-charging to the measures adopted in this field employment agency holding a licence during the transitional period (general must be a "national" agency. It can programmes, directives) in order to perfectly well be a "foreign" agency determine the cases which the

— services which require the person light of these considerations the Belgian providing the services to go to the legislation at issue both with regard to country where the person for whom the issue of the licence (valid for one year) the services are intended is required in order to operate a fee- established; charging employment agency for enter- tainers and with regard to the operating — services which require the person for rules for such agency and the supervisory whom the services are intended to go powers conferred on the competent to the country where the person authority. providing the services is established; The requirement of acting through an — services which do not require either of these changes of location. employment agency established in Belgium constitutes a restriction on the The activity at issue in this case, namely right to provide services, which is all the the placing by an impresario (the person more obvious as it is accompanied by an providing this service) of an entertainer obligation on the part of the person in employment in the country where the providing the services to share the person for whom the service is intended commission with that agency, which has is established, is a service which in most the effect of making the services more cases comes within the third of the costly. Such a requirement is justifiable classes defined above. only if, in accordance with the case-law of the Court, it is "objectively justified Since the activity is one which does not by the need" to achieve the aim of the require any change of location, the Belgian legislation. question which arises is to what extent the person providing the service must (a) In order to assess this, a distinction must first be drawn between two observe any rules laid down for different situations: admission to and pursuit of the activity in the State in which the service is (i) Where the activity in question is provided: this is one aspect of the not controlled in the country in general problem of determining the which the person providing the legislation applicable to a particular services is established and the provision of services. Community institutions have not The rules of the Treaty do not provide adopted directives under Article any solution on this point, except in the 57 of the Treaty in order to case referred to in the third paragraph of make it easier for people to take Article 60. However, in its judgment in up and pursue activities as self- the aforementioned Van Binsbergen case, employed persons or, in the the Court accepted in relation to the absence of such directives, profession of lawyer that specific considered it desirable to faci-

appeared that: Dealing next with Question 3, the Commission observes that it is relevant — The Council considered only if the disputed national provisions minimal approximation of are found to involve discrimination. The those rules to be sufficient; fact that those provisions were embodied in other measures of national law is — The rules of the State of irrelevant. Since the national court felt establishment are comparable obliged to raise the question of the with the Belgian legislation. discriminatory character of those In the present case an answer provisions by referring to Article 62 of to this last point is offered by the Treaty, the following observations the Belgian legislation itself, should be made: in its reference to Convention No 96 of the — By reason of its scope and content, International Labour Organi- Article 62 would in any event have zation, the provisions of been inapplicable to this case during which have also been incorpo- the transitional period because, as has rated into the French rules been stated, the legislation at issue was not a "new" measure. relating to the placing of entertainers in employment; — Assuming that a measure is discrimi- those rules are plainly based natory, the question whether it is new on the same concerns as has in any case become immaterial those underlying the Belgian since the expiry of the transitional legislation, since they provide period, because pursuant to the inter alia for the placing of entertainers in employment by holders of an annual licence as an employment agent for entertainers.

"1. Fee-charging employment agencies 3. During the transitional period, for entertainers do not come within Member States were allowed under

Group 839 of the International Article 62 of the EEC Treaty to re- Standard Industrial Classification, as enact but not make more restrictive

cited in the General Programme for discriminatory provisions which the abolition of restrictions on existed in their legislation before the freedom to provide services, but entry into force of the Treaty. within Groups 841 and 842 of that Since the expiry of the transitional classification. period it has no longer been allowed They are not covered either by the to apply any discriminatory Council Directive of 12 January provision within the meaning of Article 59." 1967 or by any other Community directive.

Nevertheless, as regards their III — Oral procedure activities, restrictions on freedom to provide services within the The Chambre Syndicale des Agents Artis- Community are prohibited by virtue tiques et Impresarii de Belgique [Belgian of the direct applicability of Article 59 as from the expiry of the transitional period. 2. The specific requirement by a Member State that such a fee-

charging employment agency providing services must pass through a fee-charging employment agency

MINISTÈRE PUBLIC AND A.S.B.L. VAN WESEMAEL

It is irrelevant whether this obligation to comply with those placing in employment is carried out requirements would be to disregard the within French territory or abroad, objectives of the Arrêté Royal of 28 November 1975. because the place of performance of the contract is only an incidental connecting Finally, even supposing that it contains link. Therefore it follows that within the substantive rules identical to those in limits of the issue before the court Belgian law, foreign legislation (in this making the reference, Community law is case French legislation) cannot guarantee inapplicable. the Belgian State, as organizer of the employment service, compliance with Going on to examine the substance of Belgian law by employment agents not the questions raised, the Chambre holding a Belgian licence. Syndicale observes that the obligation imposed in Article 20 of the Arrêté The Chambre Syndicale concludes by Royal requires not that use must be submitting that the Court should, made of a Belgian agency but only that "rule that the proceedings referred to it use must be made of an agency holding a for a preliminary ruling by the Tribunal Belgian licence. Therefore the Belgian de Première Instance of the district of rules do not contain any discrimination Tournai giving judgment in criminal based on nationality. proceedings do not come within Moreover, the Belgian rules make the Community law; and in the alternative, operation of fee-charging employment rule that the Belgian rules on fee- agencies subject to a certain number of charging employment agencies contained conditions with the aim only of in the Arrêté Royal of 28 November 1975 and the Arrêté Ministériel of 1 preventing abuses to which entertainers may be exposed from clandestine private

JUDGMENT OF 18. 1. 1979 — JOINED CASES 110 AND 111/78

December 1975 are not incompatible requires, for purposes of supervision, with the provisions of the EEC Treaty." that it be stated where the documents

which it is obligatory to hold are At the same hearing, the Belgian deposited and held in Belgium. Government stated that under Belgian legislation any foreigner, whether a The Judge-Rapporteur raised the national of a Member State or not, can question whether the. condition of obtain a licence to operate a fee- enjoying "civil and political rights" laid charging employment agency for enter- down in Article 8 (3) of the Arrêté Royal tainers if, like Belgian nationals, he fulfils did not imply that only Belgian nationals the conditions for the issue of such are entitled to apply for a licence, and licence laid down in the Arrêté Royal of the Belgian Government 'answered that 28 November 1975 and in the Arrêté that condition should be understood as Ministériel of 1 December 1975. referring not only to civil and political rights conferred by the Belgian State but There is no requirement that a foreign also to those conferred by other States. applicant must be domiciled or resident in Belgium, or that he must have an The Advocate General delivered his

establishment there. Article 8 (8) of the opinion at the hearing on 28 November aforementioned Arrêté Royal merely 1978.

Decision

1 By two judgments both delivered on 21 March 1978 and received at the Court of Justice on 8 May 1978, the Tribunal de Première Instance de Tournai referred under Article 177 of the EEC Treaty several questions on the interpretation of Council Directive 67/43/EEC of 12 January 1967 (Official Journal, English Special Edition 1967, p. 3) and of certain provisions of the EEC Treaty relating to freedom to provide services.

6 The cases were joined for the purpose of the oral procedure, ánd the joinder should be maintained for the purpose of the judgment.

7 Since the activity at issue in these proceedings consists in the provision of services, the consideration of the questions raised by the national court must primarily start from a consideration of the provisions of the Treaty relating to "services".

8 The first question asks whether the activities of fee-charging employment agencies for entertainers are classifiable in Group 839 of the ISIC under the term "employment agencies".

9 If that question is answered in the affirmative, it is then asked whether the activities of the said employment agencies have in fact been properly liberalized by Council Directive 67/43/EEC of 12 January 1967.

io If the preceding question is answered in the affirmative, the national court's third question asks whether Article 62 of the Treaty authorizes a Member State to re-enact discriminatory provisions which were in force previously in its legislation without making them more discriminatory.

JUDGMENT OF 18. 1. 1979 — JOINED CASES 110 AND 111/78

16 The detailed version of the ISIC which was adopted in 1964 expressly states that although employment agencies come within that group, theatrical and radio employment is excluded from it.

17 That version places "casting bureaus" under Group 841 in the sector of motion pictures and allied services, and services "such as theatrical employment agencies" under Group 842 in the area of theatres and related services.

MINISTÈRE PUBLIC AND A.S.B.L. VAN WESEMAEL

18 Accordingly, fee-charging employment agencies for entertainers are not classifiable in Group 839 of the ISIC under the term "employment agencies".

19 It emerges from Questions 2 and 4 that the national court raised the issue of the classification of the activities concerned in the context of the ISIC only in order to determine whether those activities have been liberalized within the

meaning of the provisions of Article 59 of the Treaty on freedom to provide services.

JUDGMENT OF 18. 1. 1979 — JOINED CASES 110 AND 111/78

24 The first paragraph of Article 59 of the Treaty provides that "... restrictions on freedom to provide services within the Community shall be progressively abolished during the transitional period in respect of nationals of Member States ..." of the Community.

25 In laying down that freedom to provide services shall be attained by the end of the transitional period, that provision, interpreted in the light of Article 8 (7) of the Treaty, imposes an obligation to attain a precise result, the fulfilment of which had to be made easier by, but not made dependent on, the implementation of a programme of progressive measures.

26 It follows that the essential requirements of Article 59 of the Treaty, which was to be implemented progressively during the transitional period by means of the directives referred to in Article 63, became directly and unconditionally applicable on the expiry of that period.

27 Those essential requirements, which lay down the freedom to provide services, 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.

28 Taking into account the particular nature of certain services to be provided, such as the placing of entertainers in employment, specific requirements imposed on persons providing services cannot be considered incompatible with the Treaty where they have as their purpose the application of pro- fessional rules, justified by the general good or by the need to ensure the protection of the entertainer, which are binding upon any person established in the said State, in so far as the person providing the service is not subject to similar requirements in the Member State in which he is established.

32 In the submission of the Belgian Government, that Convention, which was ratified in Belgium by the Law of 3 March 1958, is "strictly observed by the Arrêté Royal of 28 November 1975, which lays down as a general principle that it shall be prohibited to operate fee-charging employment agencies (Article 2) and which allows only one 'exception' to that general principle, which relates exclusively to fee-charging employment agencies for enter- tainers on the express condition that they shall be conducted in accordance with the strict legal conditions stipulated".

33 The aforementioned international Convention lays down the general principle of the prohibition of fee-charging employment agencies conducted with a view to profit, and for that purpose Article 3 (1) thereof provides that such agencies "shall be abolished within a limited period of time determined by the competent authority".

34 Moreover, Article 5 (1) of the Convention provides that, "exceptions to the provisions of ... Article 3 of [the] Convention shall be allowed by the competent authority in exceptional cases in respect of categories of persons, exactly defined by national laws or regulations, for whom appropriate placing arrangements cannot conveniently be made within the framework of the public employment service ...".

35 Thus, since, the maintenance of fee-charging employment agencies does not correspond to an obligation under Convention No 96, the Belgian Government cannot rely on that Convention in order to set aside the provisions of the Treaty in the field of freedom to provide services.

39 For all these reasons, the answer should be that when the pursuit of the activity of fee-charging employment agencies for entertainers is made subject in the State in which the service is provided to the issue of a licence, that State may not impose on the persons providing the service who are established in another Member State any obligation either to satisfy that requirement or to act through a fee-charging employment agency which holds such a licence when the service is provided by an employment agency which comes under the public administration of a Member State or when the person providing the services holds in the Member State in which he is established a licence issued under conditions comparable to those required by the State in which the service is provided and his activities are subject in the first State to proper supervision covering all employment agency activity whatever may be the Member State in which the service is provided.

Costs

40 The costs incurred by the Belgian Government and the Commission of the European Communities, which submitted observations to the Court, are not recoverable.

41 As these proceedings are in the nature of a step in the criminal proceedings pending before the national court, costs are a matter for that court.

MINISTÈRE PUBLIC AND A.S.B.L. VAN WESEMAEL

On those grounds,

Sørensen O'Keeffe Bosco Touffait

Delivered in open court in Luxembourg on 18 January 1979.

A. Van Houtte H. Kutscher

Registrar President