C-193/97

I — The facts in both cases 3. On the basis of an EC certificate issued by the Confederation on 24 April 1994, which showed that Mr de Castro Freitas had pur­ sued the activity of civil construction in Por­ tugal between 6 January 1981 and 31 December 2. It appears from the documents before the 1989, the Luxembourg authorities issued a Court that, on 21 October 1993, Mr de Castro licence to pursue the activity of building con­ Freitas applied to the Luxembourg authori­ tractor on 15 June 1994. By letter of 27 June ties for a licence to pursue the activity of 1994, Mr de Castro Freitas was informed that 'civil construction: construction and repair of he would be unable to obtain a licence to pursue the activity of façade finisher since, once the years taken into account for the trade * Original language: Spanish. of building contractor were subtracted, he 1 — Council Directive 64/427/EEC of 7 July 1964 laying down would still have to provide evidence of an detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and additional period of activity in order to sat­ processing industries falling within ISIC Major Groups 23 to isfy the conditions laid down in Article 3 of 40 (Industry and small craft industries) (OJ, English Special Edition 1963-1964, p. 148). Directive 64/427.

I - 6749

OPINION OF MR RUIZ-JARABO — JOINED CASES C-193/97 AND C-194/97

I - 6750

DE CASTRO FREITAS AND ESCALLIER v MINISTRE DES CLASSES MOYENNES ET DU TOURISME

Industry for the Moselle, which shows that in particular, to the principle of the he pursued the three trades in question as a freedom of establishment laid down in person responsible for managing an under­ Article 52 of the Treaty ... establishing taking during the period from 21 January the European Economic Community? 1983 to 5 February 1990.

II — The questions referred (2) If so, is the period of experience required by Article 3(a) altered in respect of all or some of the activities concerned owing to the fact that they were pursued simul- taneously} 8. In order to resolve these two disputes, the Tribunal Administratif, Luxembourg has referred the following questions for a pre­ liminary ruling:

I - 6751

OPINION OF MR RUIZ-JARABO — JOINED CASES C-193/97 AND C-194/97

Title II, Chapter II, of that Law, which con­ case are the following: tains the rules relating to manual trades and industrial building firms, provides, in Article 13, that both the list of principal and sec­ ondary trades and the activities which they cover are to be established by regulations Group 4: Trades relating to construction and implementing the Law adopted following con­ housing sultation of the relevant professional associa­ tions. In order to pursue a principal trade, manual tradesmen must hold a master crafts­ man's certificate or a university engineering qualification in the relevant field. It also states, however, that an applicant who has no such 401-00 Building contractor qualifications may be deemed to have suffi­ cient professional ability to pursue a trade or part of a trade, on the basis of documentary 414-00 Roofer evidence recognised as equivalent. The equiva­ lence criteria against which such professional competence is assessed were laid down in the 415-00 Sheet and galvanised metal craftsman Regulation of 15 September 1989.

416-00 Construction carpenter

10. The list of trades is set out in the Regula­ 419-00 Plasterer and facade finisher. tion of 19 February 1990, which classifies them by a number consisting of five digits: the first determines the professional group; the second and third indicate the various trades within a group and the technical rela­ 12. The equivalence criteria used to assess tionship between them; while the fourth and whether an applicant has sufficient profes­ fifth serve to distinguish the principal trades, sional ability to pursue one of these trades identified by the digits 00 to 09, from the sec­ were laid down in the Regulation of 15 Sep­ ondary trades, which are numbered from 11 tember 1989, which provides, in so far as it is upwards. The principal trades identified by relevant here: the digits 00 carry the right to pursue the trades numbered 01 to 09 listed after them.

'Article 7.For the purposes of [this Regula­ tion], professional practice shall mean any occupation affording additional practical expe­ rience in the relevant areas of the manual trade in question.' 14. Pursuant to Article 54 of the Treaty, the Council drew up a General Programme for the abolition of restrictions on freedom of 3 establishment (hereinafter the 'General Pro­ gramme'), which adopts a timetable for the effective abolition of such restrictions, with IV — The Community legislation varying time-limits for the activities listed in its five Annexes. Construction, for example, appears in Annex I, which means that restric­ tions on the right of establishment in respect of that activity should have been effectively abolished before the end of the second year 4 of the second stage of the transitional period.

13. The Community provisions which the national court seeks to have interpreted in 3 — OJ, English Special Edition, Second Series (IX), p. 7. order to enable it to give judgment in these 4 — Part B of Title IV of the General Programme lays down a cases are contained in both the EC Treaty longer time-limit for activities within Annex I, Group 400 — 'Construction, including public works' carried out under and Directive 64/427. public works contracts.

I - 6753

OPINION OF MR RUIZ-JARABO — JOINED CASES C-193/97 AND C-194/97

16. Those transitional measures were to con­ sist mainly in allowing, as sufficient qualifica­ (b) three consecutive years either in an inde­ tion for taking up small craft activities in host pendent capacity or as a person respon­ States which have rules governing such activi­ sible for managing an undertaking, where ties, the fact that the occupation has actually the beneficiary can prove that for the been pursued in the country from which the occupation in question he has received at person concerned comes for a reasonable least three years' previous training, period of time and at a sufficiently recent attested by a certificate recognised by the point in time, in cases where no previous State, or regarded by the competent pro­ training is required to guarantee that the ben­ fessional body as fully satisfying its eficiary possesses professional knowledge requirements; or equivalent to that required of the host coun­ 5 try's own nationals.

(c) three consecutive years in an independent 5 — Second, fourth, fifth and sixth recitals in the preamble. capacity, where the beneficiary can prove

I - 6754

DE CASTRO FREITAS AND ESCALLIER v MINISTRE DES CLASSES MOYENNES ET DU TOURISME

'For the purpose of applying Article 3: 18. On 18 June 1992, the Council adopted Directive 92/51 / EEC , 6which is intended to facilitate the pursuit of all those professional

6 — Council Directive 92/51/EEC of 18 June 1992 on a second 1. Member States in which the taking-up and general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 pursuit of any occupation referred to in Arti­ L 209, p. 25).

I - 6755

OPINION OF MR RUIZ-JARABO — JOINED CASES C-193/97 AND C-194/97

19. The Proposal for a Directive establishing 21. Mr de Castro Freitas states that, as it is a mechanism for the recognition of qualifica­ worded, the only condition which the first tions in respect of the professional activities paragraph of Article 3 of Directive 64/427 covered by the Directives on liberalisation lays down is that a person applying for a and transitional measures and supplementing licence to engage in a trade must actually have the general system for the recognition of pursued the activity in question. It does not qualifications, 8presented by the Commission require that to be the only activity engaged in on 9 February 1996 and still awaiting adop­ during the periods referred to in subpara­ tion, contains virtually no changes to the text graphs (a) to (d), and it does not therefore of Directive 64/427, which is still in force and exclude the situation of a Community national is the relevant directive for the purpose of who has simultaneously pursued more than settling the disputes in the main proceedings. one of the activities covered by the Directive in the Member State of origin. He further states that Article 52 of the Treaty guarantees the right of establishment for all Community 7 — Council Directive 89/48/EEC of 21 december 1988 on a gen- eral system for the recognition of higher education diplomas nationals without discrimination on grounds awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p. 16). of nationality as regards the taking-up and 8 — Proposal for a European Parliament and Council Directive pursuit of an occupation. This means that a establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Direc- national of a Member State who proves, by tives on liberalisation and transitional measures and supple- means of a certificate issued by the competent menting the general system for the recognition of qualifica- tions, COM(96) 22 final (OJ 1996 C 115, p. 16). authority, that he has actually pursued certain

professional activities in that State must auto­ 22. The plaintiff in the other main action, matically be authorised to establish himself in Mr Escallier, contends that Directive 64/427 any other Member State, since, otherwise, the is a transitional measure the wording of which system introduced by Directive 64/427 for quite clearly lays down that a Community the automatic recognition by the host Member national who has simultaneously pursued State of the experience attested to by the more than one activity falling within its scope competent authority of the State of origin in the State of origin and who applies for a would be prevented from functioning prop­ licence to establish himself in another Member erly. State may also pursue those activities simul­ taneously in the latter State. He maintains that the Luxembourg State cannot rely on Directive 64/427 in order to refuse the right of establishment in those circumstances since that right has applied to all types of indepen­ dent activity since 1 January 1970. In his view, the period of experience laid down in Article 3(a) of Directive 64/427 cannot be affected by the fact that more than one of the activities falling within the scope of that Directive has been pursued simultaneously. He states finally In his opinion, Article 3(a) of Directive 64/427 that Directive 64/427 does not lay down any must be interpreted to the effect that the rules applicable to related activities. Accord­ period of experience which it lays down ingly, the existence or otherwise of such a cannot be increased on the ground that the relationship between the activities for which various activities were pursued simultaneously, a licence is sought has no bearing on the provided that they cover fields which are suf­ interpretation of its provisions. ficiently closely related for the fact of their being pursued simultaneously not to impair assimilation of the theoretical and practical knowledge needed to learn the trade in ques­ tion properly. He then raises the question whether the legislator may have deliberately used the word 'activity' in Article 3 so as to make it possible for the same activity to encompass several Occupations' or 'trades' capable of being pursued simultaneously as part of a single, more generic, 'activity'; the trades of façade finisher and building con­ tractor for exterior finishings, for example, would thus form part of the generic activity 23. The Commission takes the view that there of construction and housing. He states finally are two concepts in the sixth recital in the that the existence of a close relationship preamble to Directive 64/427 which are cru­ between several occupations or trades for cial to the interpretation of Article 3 thereof, which a licence is sought will be conclusive in namely the requirements that the occupation determining whether the period of experience must actually have been pursued for a reason­ laid down in Article 3(a) of Directive 64/427 able period in the country of origin and that is six years or a multiple thereof, where more it must have been pursued at a sufficiently than one occupation or trade has been pur­ recent point in time. For the purposes of these sued simultaneously. cases, the period of previous experience

It then examines the factors which the national authorities must take into account when rec- ognising the previous professional experience of a person who has pursued a number of activities in the Member State of origin and wishes to carry on pursuing them in the host The Commission considers that in order for Member State. The first of these relates to the previous experience to be regarded as valid capacity in which the person concerned for the purposes of granting authorisation to intends to pursue those activities, given that, take up such activities in the host Member if he has worked as a person responsible for State, the person concerned must provide managing an undertaking, which primarily documentary evidence that he has pursued entails supervision of often more than one those activities for the period required. By trade, it will be easier for him to fulfil the way of example, it cites the case of a person requirements than for someone who has been who has pursued three entirely separate occu- self-employed. The second relates to the nature pations for a total period of six years; as that of the activities and, above all, to the relation- period would have to be counted as two years' ship between them. If no such relationship experience in each occupation, he would not exists, the experience acquired in pursuing be entitled to take up any of the three occu- them simultaneously for six years cannot be pations in the host Member State. It is the deemed sufficient. Finally, it must be decided Commission's view that only pursuit of the exactly what period is to be taken into account activity on a full-time basis may be taken into for each activity. In this respect, the Commis- account as 'actual pursuit' for the purposes of sion distinguishes between two possibilities: Article 3 of Directive 64/427. Simultaneous either the person concerned proves, by means pursuit of more than one activity for six years of the certificate provided for in Article 4(2)

24. At the hearing, the Portuguese Republic maintained that Directive 64/427, with a view to facilitating exercise of the right of estab­ 26. The Court of Justice has consistently held lishment, introduces a comprehensive system that 'Article 52 of the EEC Treaty embodies to ensure that a Member State in which the one of the fundamental principles of the Com­ taking-up of certain professional activities is munity and has been direcdy applicable in subject to the possession of specific knowl­ the Member States since the end of the tran­ edge and ability may accept, as sufficient evi­ sitional period. By virtue of that provision, dence thereof, the fact that those activities freedom of establishment for nationals of one have actually been pursued in another Member Member State on the territory of another State. Accordingly, the Member State in which includes the right to take up and pursue the person concerned wishes to establish him­ activities as self-employed persons and to set self cannot rely on its internal legislation or up and manage undertakings under the con­ invoke the provisions of the Directive in order ditions laid down for its own nationals by the to refuse to recognise as valid and effective law of the country where such establishment the certificate which the competent authority is effected'. The Court infers from this that of the Member State of origin has issued in 'Article 52 is intended to ensure that all respect of the activity pursued and its dura­ nationals of Member States who establish tion, on the basis of the detailed description themselves in another Member State, even if of the occupation communicated by the that establishment is only secondary, for the Member State in which the person concerned purpose of pursuing activities there as self- intends to establish himself, provided that the employed persons receive the same treatment activity certified conforms to the main fea­ as nationals of that State and it prohibits, as a tures of the description of that activity. restriction on freedom of establishment, any

I none the less consider that the practice of the Luxembourg authorities may be contrary to Article 52 of the Treaty and to the provi­ sions of Directive 64/427, since it may have the effect of discouraging any Community 30. Annex I to the General Programme national who has been self-employed in that adopted in 1962 for the purpose of giving sector in another Member State from estab­ effect to Article 54(1) of the Treaty lists the lishing himself in Luxembourg. activities in respect of which Member States were required to have effectively abolished all restrictions on freedom of establishment before the end of the second year of the second stage of the transitional period. The activities in that list are classified into major groups and groups. 28. In this respect, the Court has held that 'the provisions of the Treaty relating to the free movement of persons are thus intended 10 — Case C-53/95 Inasti v Kemmler [1996] ECR I-703, para- graph 11; Case 143/87 Stanton v Inasti [1988] ECR 3877, paragraph 13; and Joined Cases 154/87 and 155/87 RSVA v Wolf and Others [1988] ECR 3908, paragraph 13. 9 — Case 270/83 Commission v France [1986] ECR 273, para- 11 — Case 11/77 Patrick v Ministre des Affaires Culturelles [1977] graphs 13 and 14. ECR 1199.

I - 6760

DE CASTRO FREITAS AND ESCALLIER v MINISTRE DES CLASSES MOYENNES ET DU TOURISME

Those major groups are: Major Group 23, Manufacture of textiles; Major Group 24, 33. It appears from the documents before the Manufacture of footwear; Major Group 25, Court that Mr de Castro Freitas worked as a Manufacture of wood and cork; Major Group self-employed building contractor and as a 26, Manufacture of furniture and fixtures; façade finisher in Portugal for nine years. He Major Group 27, Manufacture of paper and gave evidence of this to the Luxembourg paper products; Major Group 28, Printing, authorities in the form of the certificate pro- publishing and allied industries; Major Group vided for in Article 4(2) of Directive 64/427, 29, Manufacture of leather; Major Group 30, with a view to obtaining a licence to engage Manufacture of rubber products; Major Group in business in Luxembourg as a building con- 31, Manufacture of chemicals and chemical tractor authorised to carry out exterior façade products; Major Group 32, Manufacture of and roof finishings. In his case, a licence was products of petroleum and coal; Major Group granted in respect of only part of the activi- 33. Manufacture of non-metallic mineral prod- ties applied for, being refused in respect of the remainder on the ground that, in Luxem- bourg, the list of principal and secondary trades contained in the Regulation of 19 Feb- 12 — Issued by the Statistical Office of the United Nations, Sta­ tistical Papers, Series M, No 4, Rev 1, New York, 1958. ruary 1990 separates the trades simultaneously

I - 6761

OPINION OF MR RUIZ-JARABO — JOINED CASES C-193/97 AND C-I94/97

In accordance with the definition of the activi­ ties covered by those two trades contained in the Regulation of 26 March 1994, authorisa­ tion to pursue the first trade covers, inter alia, the building of façades in natural or arti­ 35. The purpose of Directive 64/427 is to ficial stone, the laying of cement surfaces and adopt measures intended primarily to avoid stone flooring, the application of lime and causing exceptional difficulties for nationals cement rendering, and the erection of scaf­ of Member States in which the taking-up of folding, whereas authorisation to pursue the activities as a self-employed person in manu­ second trade covers, inter alia, the finishing facturing and processing industries covered of ceilings and walls by means of plaster or by the Directive is not dependent on any plasterboard, the installation of false ceilings, conditions — as in the case of the trades the plastering of surfaces, the rendering of described in Portugal and France — when interior and exterior walls, the installation of they intend to establish themselves in order insulating façades, the cleaning of façades, and to pursue such activities in a Member State in the erection of scaffolding. which the taking-up of such activities is regu­ lated, as it is in Luxembourg.

undertaking, and at a sufficiently recent point pursued three trades for seven consecutive in time, it being accordingly required that years as a person responsible for managing an pursuit of the activity must not have ceased undertaking, despite the fact that, in both more than ten years before the date when the cases, the activity in question was actually application for a licence is made. pursued for longer than the period of six con­ secutive years laid down in Article 3(a) of Directive 64/427, and have refused to grant either of them a licence to pursue the same trades in Luxembourg. It had nevertheless been necessary for those certificates to be drawn up , in the light of the detailed descrip­ 37. There is no doubt that the taking-up of tion of the occupations in question commu­ the occupations in question is regulated in nicated by Luxembourg, in accordance with Luxembourg. I agree with the definition of a Article 4(2) of Directive 64/427. 'regulated profession' proposed by Advocate General Léger for the purpose of interpreting the provisions of Directive 89/48/EEC on a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at 1 least three years' duration, 3and adopted by the Court in its judgment in the same case; according to that definition, a regulated pro­ 39. The Luxembourg legislation regards each fession exists only where the State has directly of those five trades as a principal trade for or indirectly laid down rules governing the which a separate licence is required; to obtain taking-up and pursuit of the profession and such a licence, individuals must show that where penalties are imposed for failure to 1 they possess either a master craftsman's cer­ comply with those rules. 4 tificate or a university engineering qualifica­ tion in the relevant field. An applicant who does not hold such qualifications may be deemed to have sufficient professional com­ petence to pursue a trade or part of a trade on the basis of documentary evidence recognised 38. Pursuant to the rules governing the as equivalent. The certificates issued in Por­ taking-up of the relevant occupations in Lux­ tugal and in France are thus of course con­ embourg, the Luxembourg authorities have sidered to be equivalent, by virtue of Direc­ not accepted as sufficient evidence the certifi­ tive 64/427, although it has been shown in cate issued to Mr de Castro Freitas by the practice that they serve only to enable an competent authority in Portugal, showing that individual to take up one, but not all, of the he pursued two trades as a self-employed activities previously pursued, as Community person for nine consecutive years, or the cer­ nationals in identical or similar circumstances tificate issued to Mr Escallier by the compe­ to those of Mr de Castro Freitas or Mr Escal­ tent authority in France, showing that he lier, who wish to obtain a licence to pursue each of the trades classified as principal trades under the Luxembourg legislation, are required to provide evidence that they have 13 — Cited at footnote 7 above. pursued each trade for at least six consecu­ 14 — Opinion in Case C-164/94 Aranitis [1996] ECR I-135 et seq., in particular at p. I-147. tive years.

40. The Court of Justice has held that the provides that an applicant must not have formulation 'the activity in question has been ceased pursuing the activity in respect of pursued in another Member State for [a speci­ which he is applying for a licence more than fied number of] consecutive years', contained ten years before he makes the application in in Article 3 of Directive 64/427, constitutes the host Member State. one of the conditions for the recognition, by a Member State which regulates the activity in question, of the exercise of their activity in another Member State and thus makes it pos­ sible to ensure freedom of establishment in the activities covered by the Directive. For that reason, the Court added, in order to apply Directive 64/427 uniformly, it is neces­ sary to give a Community interpretation to that concept. In accordance with its case-law, those words refer solely to the actual exercise of the activity in question for a period which must be unbroken except for reasons of (short) 15 illness or (normal) holiday leave. Mr Escallier's case is a very good illustration of that eventuality. After spending seven years as a person responsible for managing a roofing firm in France, he applies to establish himself in Luxembourg in order to continue building roofs, but, on the basis of the experience for which he provides evidence, he is granted a licence only to lay roofs. If he also wishes to be authorised to build timber roof frames or to fit the metal elements which usually come with roofs, and he is content to pursue only 41. Bearing in mind that the Directive requires one of those two activities, he will have to that exercise of the activity covered by the wait until he has accumulated twelve years' certificate be genuine and last for six consecu­ experience. If, however, he is determined to tive years, and in the light of the interpreta­ gain the years of experience necessary to tion given to those words by the Court, the obtain a licence to pursue all three trades in only conclusion that can be drawn is that, if Luxembourg, he will find that, once the 16th the Luxembourg authorities' interpretation of year of gaining experience has elapsed, the Directive 64/427 were to prevail, a Commu­ experience he acquired over the first six years nity national in the same situation as Mr de will no longer be reckonable in his favour Castro Freitas or Mr Escallier would, at best, because it will be more than ten years since only succeed in establishing himself in Lux­ he ceased pursuing the first trade. Further­ embourg in order to pursue two at most of more, given that the activity must be carried the trades regarded in that country as prin­ on for six consecutive years and that, under cipal trades. It must not be forgotten that the the Luxembourg legislation, the exercise of a last paragraph of Article 3 of Directive 64/427 principal trade seems to preclude the exercise of any other of the same nature, I am curious to know which of the trades pursued simul­ taneously in France would be counted as 15 — Case 130/88 Van de Bijl v Staatssecretaris van Economische Zaken [1989] ECR 3039, paragraphs 17 and 19. having suffered the loss of experience.

42. I take the view that such a practice is professions by providing detailed descrip unacceptable not only because it leads to the tions of the activities they cover; secondly, absurd situation which I have just outlined, the Member State in which authorisation to but also because Article 4 of Directive 64/427 pursue an activity has been applied for com lays down quite unambiguously that Member municates to the State of origin the detailed States in which the taking-up and pursuit of description of the occupation in question to any of the occupations to which it applies is which the State of origin must have regard in regulated is, with the assistance of the Com issuing the certificate — and in so doing, the mission, to inform the other Member States State of origin must, in my view, conduct a of the main characteristics of that occupation critical evaluation not only of the activity by means of a description of the activities actually pursued but also of its duration; and covered by the occupation; that there is to be finally the host Member State must grant in each Member State a competent authority authorisation provided that the activity certi designated for that purpose which is to cer fied conforms to the main features of the tify what professional activities were actually detailed description of the occupation. pursued by the beneficiary and the duration of those activities, on the basis of the detailed description of the occupation communicated by the Member State in which the beneficiary wishes to establish himself; and finally that the host Member State is to grant the autho risation applied for provided that the activity certified conforms to the main features of the detailed description of the occupation com

43. Directive 64/427 thus introduces a com competent authority in the Member State prehensive system intended to ensure that a from which the beneficiary comes concerning professional activity pursued in one Member the activities in which that person was there State will be recognised, for the purposes of engaged or their duration. rights of establishment, in another Member State. It does so by means of a threefold guar antee: first, Member States inform each other of the main characteristics of the regulated 16 — Ibidem, paragraphs 21 to 23.

It is contrary to Article 52 of the Treaty and Articles 3 and 4 of Council Directive 64/427/EEC of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and pro­ cessing industries falling within ISIC Major Groups 23 to 40 (Industry and small craft industries) for a Community national who provides to the authorities of the host Member State, in the form of the certificate issued by the competent authority of the Member State of origin, evidence that he has simultaneously pursued more than one trade for the reasonable period laid down for his situation, and that he did not cease pursuing those trades more than ten years earlier, to be refused a licence to pursue part of those trades on the ground that, in the host Member State, they are regarded as principal and separate trades, and the authorities of that Member State consider that the condition requiring the activity to have been pursued for a reason­ able period must be satisfied separately in respect of each trade.

I - 6766