C-196/87

OPINION OF MR DARMON — CASE 196/87

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 5 July 1988 *

of Article 4 (2) provides that, where such Mr President, period exceeds three months, a right of Members of the Court, abode shall be issued as proof of the right of residence.

1. Having regard to the facts set out in the interim order made by the Judicial Division 4. Persons receiving services were of the Raad van State, which has made this considered in particular in the judgment in reference to the Court, I consider that, in Luisi and Carbone in which the requirement order to give a useful answer to that court, relating to the temporary nature of the any reference to Articles 59 and 60 of the receipt of services became clear. In that EEC Treaty and, more generally, to the judgment the Court held that freedom to provide services, with which the second and third preliminary questions are concerned, should be ruled out at once. That freedom essentially concerns the 'the freedom to provide services includes the pursuit of an independent professional or freedom, for the recipients of services, to go trade activity on an occasional and to another Member State in order to receive provisional basis. a service there . . . and tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of 2. The provisions of Community law services'. 2 relating to the provision of services may not be relied upon in a stable situation of indefinite duration. That consideration It is therefore clear that an activity pursued applies both to persons providing services on a permanent basis or at any rate without and to persons receiving services. any foreseeable limit in time cannot be covered by the Community provisions relating to the provision of services.

6. The possibility that activities carried out in such circumstances might be defined as 9. For the reasons indicated above, any economic activities covered as such by reference to the provisions relating to the Community law cannot be ruled out a freedom to provide services must be ruled prion. However, it is not sufficient to give out in this case. It is clear from that an abstract reply to the question raised. judgment, and this result was confirmed in 4 Participation in an association such as that Donà, that the activities of employed described by the national court may entail persons constitute ipso facto economic acti­ the pursuit of certain professional or trade vities. activities having the character of economic activities within the meaning of the Treaty. In each case it is for the national court to 10. In determining whether the situation in consider the nature and frequency of the activities in question, the relationship the case before the national court is between the person pursuing them and the governed by the Community provisions person who pays for them and in particular relating to the freedom of establishment or to determine whether the remuneration those relating to the free movement of received, in whatever form, constitutes the workers, it should be borne in mind that, in reward for the work done. its judgment in the Lawrie-Blum case, the court stated that the concept of a 'worker'

7. In a situation of unlimited duration, the 'must be defined in accordance with economic activity might be carried on either objective criteria which distinguish the pursuant to the freedom of workers to move employment relationship with reference to within the Community or pursuant to the the rights and duties of the persons freedom of establishment. concerned. The essential feature of an employment relationship ... is that for a certain period of time a person performs services for and under the direction of 8. In its judgment in Walrave and Koch, the another person in return for which he Court stated, with regard to a different receives remuneration'. 5 context, that when an economic activity, within the meaning of Article 2 of the Treaty, 11. Referring to its judgment in Levin, 6the Court also pointed out that:

including persons who, because they are not 14. In its judgment in Royer the Court in employed full time, receive pay lower than fact held that the provisions relating to that for full-time employment, provided that those two freedoms are based on the same the activities performed are effective and principles genuine'. 7 'in so far as they concern the entry into and 12. In other words, it is for the national residence in the territory of the Member court to determine whether the plaintiff's States of persons covered by Community status within the association in question, the law'. 8 work he does and the remuneration he receives for it render applicable the Community provisions relating to the free 15. It follows that, in order to resolve the movement of workers or to the freedom of case before it and to determine whether the establishment, depending on the case. provisions of Community law relating to the free movement of persons apply to it, the 13. However, in the present case, it is national court must examine the nature of irrelevant to determine which set of the activities carried out by the plaintiff and provisions applies since Mr Steymann ascertain to what extent he is remunerated brought his action against the decision as a reward for his work and not indepen­ refusing to grant him a residence permit. dently of it.

16. Consequently, I propose that the Court should rule that:

'The professional or trade activity carried out in a Member State by a national of another Member State within, or in the service of, a spiritual community may be regarded by the national court as an economic activity within the meaning of the Treaty if it constitutes the necessary quid pro quo for the remuneration which that person receives, in whatever form, from that community.'