# C_2006165EN.01001501.xml

| 15.7.2006 | EN | Official Journal of the European Union | C 165/15 |
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15.7.2006

EN

Official Journal of the European Union

C 165/15

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Reference for a preliminary ruling from the Rechtbank van Koophandel te Hasselt (Belgium) lodged on 3 May 2006 — Confederatie van Immobilien-Beroepen van Belgie VZW and het Beroepsinstituut van Vastgoedmakelaars v Willem Van Leuken

(Case C-197/06)

(2006/C 165/26)

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Hasselt (Belgium)

Parties to the main proceedings

Claimants: Confederatie van Immobilien-Beroepen van Belgie VZW and het Beroepsinstituut van Vastgoedmakelaars

Claimants:

Defendant: Willem Van Leuken

Defendant:

Question(s) referred

| (a) | Must Articles 3 and 4 of Directive 89/48/EEC (1) be interpreted as meaning that a real estate agent who is established in the Netherlands and organises agency activities in Belgium in respect of real property is no longer obliged to comply with the conditions laid down by the Belgian legislature pursuant to the aforementioned directive (Article 2 of the Royal Decree of 6 September 1993, Article 3 of the Framework Law of 1 March 1976) in the case where he has concluded a cooperation agreement with a real estate agent who is established in Belgium and is certified by the Belgian Professional Association of Real Estate Agents (BIV) and organises his activities in such a way that (i) consumers may always have recourse to this real estate agent registered in Belgium for purposes of activities in Belgium and (ii) this collaboration is made clear in publicity, in particular through reference to the intermediary role played by this real estate agent certified in Belgium by the BIV in connection with activities carried out pursuant to Belgian law?;
  or
  Must Articles 3 and 4 of Directive 89/48/EEC be interpreted as meaning that a real estate agent who is established in the Netherlands and organises agency activities in Belgium in respect of real property is in every case obliged to comply with the conditions laid down by the Belgian legislature pursuant to the aforementioned directive (Article 2 of the Royal Decree of 6 September 1993, Article 3 of the Framework Law of 1 March 1976), notwithstanding any cooperation agreement with a real estate agent who is certified in Belgium and provides intermediary services in regard to activities governed by Belgian law? |
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(a)

Must Articles 3 and 4 of Directive 89/48/EEC (1) be interpreted as meaning that a real estate agent who is established in the Netherlands and organises agency activities in Belgium in respect of real property is no longer obliged to comply with the conditions laid down by the Belgian legislature pursuant to the aforementioned directive (Article 2 of the Royal Decree of 6 September 1993, Article 3 of the Framework Law of 1 March 1976) in the case where he has concluded a cooperation agreement with a real estate agent who is established in Belgium and is certified by the Belgian Professional Association of Real Estate Agents (BIV) and organises his activities in such a way that (i) consumers may always have recourse to this real estate agent registered in Belgium for purposes of activities in Belgium and (ii) this collaboration is made clear in publicity, in particular through reference to the intermediary role played by this real estate agent certified in Belgium by the BIV in connection with activities carried out pursuant to Belgian law?;

1

or

Must Articles 3 and 4 of Directive 89/48/EEC be interpreted as meaning that a real estate agent who is established in the Netherlands and organises agency activities in Belgium in respect of real property is in every case obliged to comply with the conditions laid down by the Belgian legislature pursuant to the aforementioned directive (Article 2 of the Royal Decree of 6 September 1993, Article 3 of the Framework Law of 1 March 1976), notwithstanding any cooperation agreement with a real estate agent who is certified in Belgium and provides intermediary services in regard to activities governed by Belgian law?

in every case

notwithstanding

| (b) | Should the Court of Justice take the view that Articles 3 and 4 of Directive 89/48 must be interpreted as meaning that a real estate agent who is established in the Netherlands and organises agency activities in Belgium in respect of real property is in every case obliged to comply with the conditions laid down by the Belgian legislature pursuant to the aforementioned directive (Article 2 of the Royal Decree of 6 September 1993, Article 3 of the Framework Law of 1 March 1976), notwithstanding any cooperation agreement with a real estate agent who is certified in Belgium and provides intermediary services in regard to activities governed by Belgian law, does it not then follow that that directive and the national provisions adopted to implement it are contrary to Article 49 EC setting out the principle of freedom to provide cross-border services inasmuch as, on the basis of the foregoing construction, that directive and the national provisions adopted to implement it protect the market for estate agency activity in respect of real property situate in Belgium, in a manner which is objectionable, artificial and lacking objective justification, against cooperation agreements entered into by independent real estate agents established in different Member States (Belgium and the Netherlands), at least one of whom (the Belgian real estate agent) satisfies the conditions laid down by the directive and the national provisions, with the result that the requirement that the Netherlands real estate agent must additionally also satisfy those conditions (as set out in the directive and the national provisions) is tantamount to indirect discrimination on grounds of nationality and constitutes at the very least a prohibited non-discriminatory restriction? |
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(b)

Should the Court of Justice take the view that Articles 3 and 4 of Directive 89/48 must be interpreted as meaning that a real estate agent who is established in the Netherlands and organises agency activities in Belgium in respect of real property is in every case obliged to comply with the conditions laid down by the Belgian legislature pursuant to the aforementioned directive (Article 2 of the Royal Decree of 6 September 1993, Article 3 of the Framework Law of 1 March 1976), notwithstanding any cooperation agreement with a real estate agent who is certified in Belgium and provides intermediary services in regard to activities governed by Belgian law, does it not then follow that that directive and the national provisions adopted to implement it are contrary to Article 49 EC setting out the principle of freedom to provide cross-border services inasmuch as, on the basis of the foregoing construction, that directive and the national provisions adopted to implement it protect the market for estate agency activity in respect of real property situate in Belgium, in a manner which is objectionable, artificial and lacking objective justification, against cooperation agreements entered into by independent real estate agents established in different Member States (Belgium and the Netherlands), at least one of whom (the Belgian real estate agent) satisfies the conditions laid down by the directive and the national provisions, with the result that the requirement that the Netherlands real estate agent must additionally also satisfy those conditions (as set out in the directive and the national provisions) is tantamount to indirect discrimination on grounds of nationality and constitutes at the very least a prohibited non-discriminatory restriction?

notwithstanding

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(1)  Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989 L 19, p.16).

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