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	Číslo (Kód CELEX): Number (CELEX Code):		61974J0033

	Název: Title:		JUDGMENT OF THE COURT OF 3 DECEMBER 1974. JOHANNES HENRICUS MARIA VAN BINSBERGEN V BESTUUR VAN DE BEDRIJFSVERENIGING VOOR DE METAALNIJVERHEID. PRELIMINARY RULING REQUESTED BY THE CENTRALE RAAD VAN BEROEP. FREEDOM TO PROVIDE SERVICES. CASE 33-74.

	Publikace: Publication:		REPORTS OF CASES 1974 PAGES 1299 - 1313

	Předmět (klíčová slova): Keywords		FREEDOM OF ESTABLISHMENT AND SERVICES;FREE MOVEMENT OF SERVICES;

	Související předpisy: Corresponding acts:		157E059;157E060

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Walrave Case 36/74 Walrave v Association Union Cycliste [1974] ECR 1405 · Reyners Case 2/74 Reyners v Belgian State [1974] ECR 631


	Plný text: Fulltext:		Ne

Fakta:
In an action before the Centrale Raad van Beroep (Dutch Labour Court) against the Board of the Trade Association of the Engineering Industry, Mr van Binsbergen authorized Mr Kortmann to act as attorney on his behalf. When Mr Kortmann transferred his residence from the Netherlands to Belgium, his capacity to act as attorney before the Centrale Raad van Beroep was contested on the basis of a provision of Netherlands law under which only persons established in the Netherlands may act as legal representatives before that court.
The Centrale Raad van Beroep stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice the question (1) whether said provision of Netherlands law was compatible with Articles 59 and 60 of the Treaty and (2) whether Articles 59 and 60 are directly applicable.

Názor soudu a komentář:
The first paragraph of Article 59 of the Treaty provides that restrictions to the freedom to provide services within the Community shall be progressively abolished.
The provision reads as follows:“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.” Under the third paragraph of Article 60, the person providing a service may, in order to provide services, 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. The Court concludes from these provisions that a requirement that the person providing the service must be habitually resident within the territory of the State where the service is to be provided is, in principle, incompatible with said provisions because it would “have the result of depriving Article 59 of all useful effect, in view of the fact that the precise object of that Article is to abolish restrictions on freedom to provide services imposed on persons who are not established in the State where the service is to be provided”.
Such restriction may, however, be justified on grounds of the general good (cf. Article 56 in conjunction with Article 66), provided that they are indistinctly applicable and that they constitute the least intrusive means. In particular, rules which serve the purpose of regulating professional conduct (such as rules relating to organization, qualifications, professional ethics, supervision and liability) may be compatible with Article 59 if they are binding upon any person established in that State and if the person providing the service would escape the ambit of those rules being established in another Member State. “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 Article 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.” Whit respect to the requirement of proportionality, the Court goes on to observe that the requirement of habitual residence cannot be upheld “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”. In such a case “the requirement of residence within that State constitutes a restriction which is incompatible with Article 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.” (See also Reyners).
According to the Court’s established case-law, a provision of Community law is directly applicable if it is unconditional and sufficiently precise. As to the first element, the Court observes that the application of Article 59 was to be effected in steps and to be prepared by directives during a transitional period. By the end of the transitional period, however, Article 59 became unconditional. As to the precision of the provision, the Court finds that “as regards at least the specific requirement of nationality or of residence, Articles 59 and 60 impose a well-defined obligation, the fulfilment of which by the Member States cannot be delayed or jeopardized by the absence of provisions which were to be adopted in pursuance of powers conferred under Articles 63 and 66.” Therefore, the Court deems the first paragraph of Article 59 and the third paragraph of Article 66 to have direct effect. These provisions can therefore be invoked by individuals before the national courts “at least in so far as they seek to abolish any discrimination against a person providing service by reason of his nationality or the fact that he resides in a Member State other than that in which the service is to be provided” (see also Walrave

Shrnutí (Summary of the Judgment):
1. 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.

2. 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. HOWEVER, TAKING INTO ACCOUNT THE PARTICULAR NATURE OF THE SERVICES TO BE PROVIDED, SPECIFIC REQUIREMENTS IMPOSED ON THE PERSON PROVIDING THE SERVICE CANNOT BE CONSIDERED INCOMPATIBLE WITH THE TREATY WHERE THEY HAVE AS THEIR PURPOSE THE APPLICATION OF PROFESSIONAL RULES JUSTIFIED BY THE GENERAL GOOD - IN PARTICULAR RULES RELATING TO ORGANIZATION, QUALIFICATIONS, PROFESSIONAL ETHICS, SUPERVISION AND LIABILITY - WHICH ARE BINDING UPON ANY PERSON ESTABLISHED IN THE STATE IN WHICH THE SERVICE IS PROVIDED, WHERE THE PERSON PROVIDING THE SERVICE WOULD ESCAPE FROM THE AMBIT OF THOSE RULES BY BEIN
G ESTABLISHED IN ANOTHER MEMBER STATE. 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. ACCORDINGLY 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.

Plný text judikátu (Entire text of the Judgment):