C-130/88

Mr President, Commerce and Industry, Zaanland, Members of the Court, Netherlands, stating that the undertaking was set up on 26 October 1980 and its Netherlands office on 1 April 1984. He had 1. The College van Beroep has referred previously applied to the Sociaal-Econo­ four questions to the Court concerning the mische Raad (Social and Economic interpretation of certain provisions of Council) in the Netherlands for exemption Council Directive 64/427/EEC of 7 July in respect of the branch office from the 1964 1 (hereinafter referred to as the prohibition on carrying on the trade of 'directive'). painter without a licence from the Chamber of Commerce and Industry. That application was rejected by a decision of 7 2. The facts may be summarized as follows: October 1983 which was confirmed in a Mr van de Bijl, the plaintiff in the main decision of 13 December of the same year. proceedings, who is of Dutch nationality, However, the Sociaal-Economische Raad was employed in the Netherlands in various referred the application to the Staatssecre­ painting businesses until 31 August 1980. In taris van Economische Zaken (Secretary of June 1976 he was awarded the Dutch State for Economic Affairs) with regard to trainee journeyman painter's diploma and in the points concerning the application of October 1980 the diploma for journeyman Community law. painters. Those two diplomas are not recognized in the Netherlands as evidence of the professional ability required to carry on the trade of painter in an independent capacity. In October 1980 the plaintiff in 4. In effect the plaintiff in the main the main proceedings took up the activity of proceedings sought to rely on Article painter and decorator in the United 15(l)(c) of the Netherlands law of 1954 on Kingdom. From 29 December 1981 to 20 setting up as a tradesman (hereinafter February 1982 and from 1 March to 2 referred to as the 'Law of 1954'), which September 1983 he was again in paid permits the Minister of Economic Affairs to employment in the Netherlands. grant exemption from the prohibition on carrying on a specific trade without a licence from the Chamber of Commerce 3. On 14 March 1984 Mr van de Bijl and Industry where the provisions of a registered a company at the Company directive of the Council of the European Registration Office, Cardiff, United Communities relating to the establishment Kingdom, under the name C. C. van de Bijl of natural persons or companies or the (UK) Limited. On 14 December 1984 he provision of services give rise to the registered a branch office of C. C. van de granting of exemption. Bijl (UK) Limited at the Chamber of

been engaged as a painter in an independent 9. In order to resolve the difficulties caused capacity for a total period of four years and by the fact that in some States there is five months and had received previous freedom to take up and pursue certain training regarded by a competent trades whereas in others there are rules professional body as satisfying its requiring possession of formal qualifi­ requirements and that he therefore satisfied cations, Article 3 of the directive provides the conditions laid down in the directive. that a Member State in which the taking up The basis of the certificate was the fact that of any of these activities is dependent on the Mr van de Bijl had managed C. C. van de possession of specific knowledge and ability Bijl (UK) Limited since October 1980 and is to accept as sufficient evidence of such had previously obtained, after a period of knowledge and ability the fact that the five years 11 months, the Dutch trainee activity in question has been pursued in journeyman painter's diploma and diploma another Member State for a given period. for journeyman painters. Consequently the host State is to grant authorization to pursue the activity on production of a certificate of experience issued by the competent authority in the Member State whence the person concerned 6. The Netherlands Secretary of State for comes. Economic Affairs rejected Mr van de Bijľs application, questioning the validity of the certificate issued by the Department of Trade and Industry on the grounds that during the period taken into account by the British authorities in which the plaintiff had pursued the activity in the United Kingdom 10. The system introduced by the directive he had twice been employed in the has not given rise to much litigation before Netherlands and that the previous training the Court; until now only one question has referred to in the certificate had been been referred to the Court concerning the received in the Netherlands, where it was interpretation of that text. In effect, in its not recognized as being sufficient. judgment in Knoors, the Court held that the directive benefits all Community nationals, including nationals of the host Member State. The Court did, however, make one reservation, when it stated 7. The Netherlands Court before which the proceedings were brought has referred questions to the Court of Justice concerning, first, the validity of certificates issued pursuant to the directive and, secondly, the interpretion of Article 3 of the directive. 'however, it is not possible to disregard the legitimate interest which a Member State may have in preventing certain of its nationals, by means of facilities created 8. The directive adopts transitional under the Treaty, from attempting wrongly measures intended to facilitate the to evade the application of their national 2 attainment of freedom of movement and legislation as regards training for a trade . ' freedom to provide services in a certain number of industrial and small craft acti­ 2 — Judgment of 7 February 1979 in Case 115/78 Knoori v Secretary of Siale for Economic Affairs [1979] ECR 399, vities of self-employed persons. paragraph 25.

14. If the host State were recognized as 16. However, it seems to me important to having extensive power to check the underline the nature of that check which, I accuracy of the certificate, that might lead repeat, must necessarily be confined to to the system introduced by the directive checking for material error or intrinsic being deprived of all its efficacy. defect, that is to say a patent flaw in the Conversely, it does not seem to me to be certificate which is revealed on first exam­ possible to deny that State any power at all ination and does not require the competent on that point. In fact Article 4(3) of the authority to request supplementary evidence directive already accepts that the State may or to undertake any investigation itself, the check whether 'the activity certified purpose of the Community measure being conforms to the main features of the to prohibit such action. If I were to situate description of the activity' previously the discussion in the realm of evidence, I communicated. would say that the certificate is incon­ trovertible proof of what it contains unless merely reading it reveals a material error, 15. In this respect a separation must be for example a typing mistake, or an intrinsic established as regards the checks effected by defect, for example an error in calculating the State from which the person concerned the years of training or experience. On the comes when issuing the certificate and those other hand, it should not be thought that carried out by the host State when, on the certificate is valid only until proof to the production of that certificate, it grants contrary is available because that could lead access to the occupation in question, in order to avoid a situation where both those 3 •— Recommendation to the Member States concerning checks have the same purpose. It is in the certificates of experience in the country whence the migrant comes provided for in Article 4(2) of Council light of the general principle of the Directive 64/427/EEC of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of protection of legitimate expectations that activities of self-employed persons in manufacturing and the separation of those checks must be processing industries falling within ISIC Major Groups 23 to 40 ((Industry and small craft industries) JO 24, perceived. The matters already checked by 11.2.1965, p. 410).

national administrations to search, in a the efficacy of the system introduced by the particular case, for any facts that contra directive. dicted those of the certificate, in particular by questioning the public authorities of another Member State, which runs directly 18. That leads me directly to the second counter to the principle of the protection of and third questions regarding the interpre legitimate expectations. Similarly, subject to tation of Article 3 of the directive. the abovementioned provisions of Article 4(3) of the directive, there cannot be any checking of the nature of the occupation 19. That article lays down the requirements since that has already been carried out in in respect of the fact that the activity in the Member State whence the person question has been pursued, making up for concerned comes by means of a comparison the absence of diplomas.

That is the case of fraud. The importance where the beneficiary can prove general principle of fraus omnia corrumpit is that for the occupation in question he has involved. Can it be supposed that a host received at least three years' previous Member State which is aware, without training attested by a certificate recognized having searched for them, of a certain by the State or regarded by the competent number of facts showing that the competent professional body as fully satisfying its authority of the Member State whence the requirements. person concerned came had been deceived when issuing the certificate cannot raise any objection to that fraud but, that being the 20. The difficulty is to be found in the case, is obliged to allow the person interpretation of the term 'certificate concerned to take up the occupation in recognized by the State'.

Combining that of the host State might, in such circum provision with the provisions of Article 3(b) stances, refuse to take the fraudulently and (d), the United Kingdom infers a obtained certificate into account. The very requirement that the previous training 'must narrow definition usually given to the have been received in the Member State in concept of fraud is, I believe, a protection which the activities in question were actually against the risks just mentioned as regards pursued'.

21. That argument cannot be accepted. 24. On that point I consider that only the Nowhere in Article 3 is that specifically State where the previous training was stated and it is supported by the spirit of the obtained is in a position to ascertain the article even less than by the letter. Let us suitability of that training and how seriously imagine, to take the example given by the it has been undertaken when deciding Commission, that a national of Member whether or not to recognize the diploma State A obtains training in Member State B, awarded on completion or by delegating the subsequently works in Member State C and task of assessing its validity to a competent finally establishes himself in Member professional body. In fact, once again it is a State D. Should he be precluded from question of the strict application of the relying on the directive? That contention principle of protection of legitimate expec cannot really be sustained. What would tations. Subject to generic recognition of appear to be needed is that the State where equivalence, the State granting access to an the activity was actually pursued — Member occupation cannot and should not check State C in the above example — should whether the previous training undertaken in recognize, if necessary by equivalence, the another Member State is suitable for the validity of the previous training received in pursuit of that occupation.

Court. Assuming that the training was undertaken in another Member State received in a Member State other than that because such a label of guarantee was in which the activity was actually pursued, lacking. Moreover, the State which provides the College van Beroep asks whether that training or which causes training to be training should ensure access to the pursuit provided must be able to oversee all the of the activity in question not only in that consequences and decide whether or not to State, but also in the Member State where approve that training with regard to its the training was received. genuineness, its quality and adequacy, by recognizing or not recognizing diplomas obtained or by allowing a professional body

4 validity of that training. 25. The whole system of the directive must thus be understood as resting on the general 4 — See the Commission's observations, p. 13 in the French version. principle of protection of legitimate expec-

27. In my view it is therefore unreasonable to dissociate the State which, directly or 'the terms "worker" and "activity as an indirectly, provides the training and the employed person" may not be defined by State which approves that training in the reference to the national laws of the form of a diploma or recognition by a Member States but has a Community professional body. I would add that that meaning' 5 does not appear to be the scheme of the directive. Article 4(2) thereof indicates that the State whence the beneficiary comes is to certify what professional activities were actually pursued by him. There is no 32. In so far as the concept of 'consecutive question of certifying the previous training. years' constitutes one of the requirements enabling freedom of establishment in many industrial and small craft industries, it seems to me necessary that interpretations which might be given to the concept by the various 28. Consequently, I suggest that the reply national bodies should be made uniform. It to the third question should be that the is for that reason that I would suggest that previous training referred to in Article 3(b) the Court should give the concept in and (d) of the directive must have received question a Community dimension. approval in the form of a certificate recognized by the State where the training 5 — Judgment of 23 March 1982 in Case 53/81 Levin v Staats- secretaris van Justitie [1982] ECR 1035; see also the has been undertaken or have been judgments of 11 July 1985 in Case 105/84 Foreningen af recognized by a competent professional Arbejdsledere i Danmark v Dannols Inventor [1985] ECR 2639, and of 3 July 1986 in Case 66/85 Lawne-Blum body as fully satisfying its requirements. [1986] ECR 2121, paragraph 16.

(4) The concept of "consecutive years" referred to in that article must be understood as a period which has been interrupted only by the incidents of everyday life, such as absences on sick-leave of limited length and normal holidays.'