# C_2004217EN.01001203.xml

| 28.8.2004 | EN | Official Journal of the European Union | C 217/12 |
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Action brought on 14 June 2004 by the Commission of the European Communities against the French Republic

(Case C-255/04)

(2004/C 217/24)

An action against the French Republic was brought before the Court of Justice of the European Communities on 14 June 2004 by the Commission of the European Communities, represented by E. Traversa and A.-M. Rouchaud-Joët, acting as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

| — | Declare that
—
by making the grant of a licence to a performing artists' engagements agency, established in another Member State, subject to the criterion of the benefit of the agency's activity in the light of the needs for engagement of performers, —
by imposing the presumption of employment on a performing artist who is recognised as a service provider and established in his Member State of origin where he usually provides similar services, the French Republic has failed to fulfil its obligations under Articles 43 and 49 EC. | — | by making the grant of a licence to a performing artists' engagements agency, established in another Member State, subject to the criterion of the benefit of the agency's activity in the light of the needs for engagement of performers, | — | by imposing the presumption of employment on a performing artist who is recognised as a service provider and established in his Member State of origin where he usually provides similar services, |
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| — | by making the grant of a licence to a performing artists' engagements agency, established in another Member State, subject to the criterion of the benefit of the agency's activity in the light of the needs for engagement of performers, | | | | |
| — | by imposing the presumption of employment on a performing artist who is recognised as a service provider and established in his Member State of origin where he usually provides similar services, | | | | |

| — | Order the French Republic to pay the costs. |
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Pleas in law and main arguments:

The regime for granting licences to service providers established in another Member State who do not possess a licence delivered under comparable conditions in their State of origin is a purely automatic application of the regime which applies to service providers established in France and takes no account of the evidence and guarantees already submitted in the country of origin. The French regime's requirement for a licence in those conditions goes beyond what is necessary to safeguard the interests of the performers concerned. Also, the criterion of the benefit of the agency's activity in the light of the needs for the engagement of performers gives the Ministre du travail (Minister for Employment) who is responsible for the grant or withdrawal of the licences, a wholly discretionary power to exclude a foreign service provider because of a sufficiency of French agencies holding a licence in France.

The presumption of employment applied to a performing artist recognised as a service provider established in his Member State of origin where he usually provides similar services constitutes a restriction on the free movement of services since it is liable to prevent or impede the service provider's activities in another Member State where he lawfully provides similar services and goes beyond what is necessary to fulfil the objectives which underlie it. Furthermore, the presumption is very difficult to rebut and has consequences not only as regards the social security system but also as regards paid holidays and the supplementary retirement regime. Even if it applies without distinction to national artists and to those of other Member States, the presumption is a restriction which is liable to hinder or make less attractive the activities of performing artists established in a Member State where they lawfully provide similar services and which is disproportionate in relation to the objective pursued.

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