Opinion of the Advocate General — ECLI:EU:C:2020:707
Date: 2020-09-10
Language of the case: Dutch
Subject matter: Competition;Right of establishment;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Freedom to provide services;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
24 May 2019 
Referring court: 
Raad van State (Belgium) 
Date of the decision to refer: 
16 May 2019 
Applicants: 
Katoen Natie Bulk Terminals NV 
General Services Antwerp NV 
Defendant: 
Belgische Staat 
      
Subject of the action in the main proceedings 
The action in the main proceedings seeks the annulment of the Koninklijk Besluit 
van 10 juli 2016 tot wijziging van het Koninklijk Besluit van 5 juli 2004 
betreffende de erkenning van havenarbeiders in de havengebieden die onder het 
toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid 
(Royal Decree of 10 July 2016 amending the Royal Decree of 5 July 2004 on the 
recognition of dockers in the port areas falling within the scope of the Law of 
8 June 1972 organising dock work) (Belgisch Staatsblad 13 July 2016). 
Subject and legal basis of the request for a preliminary ruling 
Request pursuant to Article 267 TFEU. 
In essence, the seven questions referred for a preliminary ruling raise the issue of 
whether Belgian legislation on the recognition of dockers, which was amended by 
the contested decree in 2016 pursuant to a letter of formal notice from the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-407/19 
 
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Commission, is in conformity with the provisions on freedom of movement 
(Articles 34, 35, 45, 49, 56 TFEU) and on competition (Articles 101, 102 and 106 
TFEU).  
Questions referred 
1. Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not 
read in conjunction with Article 106(1) of the TFEU, be interpreted as precluding 
the rule laid down in Article 1 of the Koninklijk Besluit van 5 juli 2004 (Royal 
Decree of 5 July 2004) ‘betreffende de erkenning van havenarbeiders in de 
havengebieden die onder het toepassingsgebied vallen van de wet van 8 juni 1972 
betreffende de havenarbeid’ (‘on the recognition of dockers in the port areas 
falling within the scope of the Law of 8 June 1972 organising dock work’), read in 
conjunction with Article 2 of the aforementioned decree of 5 July 2004, namely, 
the rule that the dockers referred to in Article 1(1), first subparagraph, of the 
aforementioned Royal Decree of 5 July 2004, upon their recognition by the 
administratieve commissie (Administrative Commission), composed jointly, on 
the one hand, of members designated by the employer organisations represented in 
the relevant joint subcommittee and, on the other hand, of members designated by 
the employee organisations represented on the joint subcommittee, are either 
included in the pool of dockers or are not included in that pool, whereby 
recognition for the purpose of inclusion takes into account the need for manpower 
and also takes into account that a decision-making deadline has not been 
prescribed for that Administrative Commission and that against its recognition 
decisions provision has been made only for a jurisdictional appeal?  
2. Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in 
conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule 
introduced by Article 4(1), subparagraphs 2, 3, 6 and 8 of the Royal Decree of 
5 July 2004 as replaced or inserted respectively by Article 4, subparagraphs 2, 3, 4 
and 6 of the contested Koninklijk Besluit van 10 juli 2016 (Royal Decree of July 
10, 2016), namely, the rule that lays down as a condition for recognition as a 
docker that the worker (a) has been declared medically fit by the external service 
for prevention and protection at the work with which the employer organisation 
designated as an agent under Article 3a of the Wet van 8 juni 1972 ‘betreffende de 
havenarbeid’ (Law of 8 June 1972 ‘organising dock work’) is associated, and (b) 
has passed the psychotechnical tests conducted by the body designated for that 
purpose by the recognised employer organisation designated as an agent under the 
same Article 3a of the Wet van 8 juni 1972, (c) has attended for three weeks the 
preparatory courses on safety at work and the attainment of professional 
competence and has passed the final test and (d) already be in possession of an 
employment contract in the case of a docker who is not included in the pool, 
which, read in conjunction with Article 4(3) of the Royal Decree of 5 July 2004, 
means that foreign dockers must be able to prove that they satisfies comparable 
conditions in another Member State so that, for the purpose of the application of 
the contested rule, they are no longer subject to those conditions? 
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3. Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in 
conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule 
introduced by Article 2(3) of the Royal Decree of 5 July 2004, as replaced by 
Article 2 of the contested Royal Decree of 10 July 2016, namely, the rule whereby 
the dockers who are not included in the pool and who are therefore directly 
recruited by an employer on an employment contract in accordance with the Wet 
van 3 juli 1978 ‘betreffende de arbeidsovereenkomsten’ (Law of 3 July 1978 ‘on 
employment contracts’) have the duration of their recognition limited to the 
duration of that employment contract so that each time a new recognition 
procedure must be started?  
4. Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in 
conjunction with Article 106(1) TFEU, be interpreted as precluding the rule 
introduced by Article 13/1 of the Royal Decree of 5 July 2004, as inserted by 
Article 17 of the Royal Decree of 10 July 2016, namely, the transitional measure 
whereby the employment contract referred to in Question 3 must initially be 
concluded for an indefinite period: from 1 July 2017 for at least two years from 
1 July 2018 for at least one year, from 1 July 2019 for at least six months, from 
1 July 2020 for a period to be freely determined?  
5. Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in 
conjunction with Article 106(1) TFEU, be interpreted as precluding the rule laid 
down in Article 15/1 of the Royal Decree of 5 July 2004, as inserted by Article 18 
of the Royal Decree of 10 July 2016, namely, the (transitional) measure whereby 
the dockers recognised under the old rule are automatically recognised as dockers 
in the pool, as a result of which the possibility of direct employment (on a 
permanent contract) of those dockers by an employer is hindered and the 
employers are prevented from engaging and retaining good workers by concluding 
a permanent contract with them directly and offering them job security in 
accordance with the general rules of labour law? 
6. Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in 
conjunction with Article 106(1) TFEU, be interpreted as precluding the rule 
introduced by Article 4(2) of the Royal Decree of 5 July 2004, as replaced by 
Article 4(7) of the Royal Decree of 10 July 2016, namely, the rule whereby a 
collective labour agreement determines the conditions and detailed rules under 
which a docker can be employed in a port area other than the one where he was 
recognised, thereby limiting the mobility of workers between port areas without 
the regulator itself providing clarity as to what those terms and conditions might 
be?  
7. Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not in 
conjunction with Article 106(1) TFEU, be interpreted as precluding the rule 
introduced by Article 1(3) of the Royal Decree of 5 July 2004, as replaced by 
Article 1, subparagraph 2, of the Royal Decree of 10 July 2016, namely, the rule 
whereby (logistics) workers who perform work within the meaning of Article 1 of 
the Koninklijk Besluit van 12 januari 1973 ‘tot oprichting en vaststelling van de 
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benaming en van de bevoegdheid van het Paritair Comité voor het Havenbedrijf’ 
(Royal Decree of 12 January 1973 ‘establishing and determining the appointment 
and powers of the Joint Ports Committee’) at locations where goods which, in 
preparation for their further distribution or dispatch, undergo a transformation that 
leads indirectly to demonstrable added value, must have a security certificate, 
whereby that security certificate constitutes recognition within the meaning of the 
Law of 8 June 1972 ‘organising dock work’, taking into account that that 
certificate is requested by the employer who has signed an employment contract 
with a worker for activities in that sense to be performed and issued upon 
presentation of the employment contract and identity card and whereby the 
detailed rules of the procedure to be followed are laid down by collective 
agreement, without the regulator providing clarity on that point?  
Provisions of EU law cited 
Articles 34, 35, 45, 49, 56, 101, 102 and 106 TFEU 
Provisions of national law cited 
Article 23 of the Grondwet (Constitution) 
Article 583 of the Gerechtelijk Wetboek (Judicial Code)  
Article II.3 and II.4 of the Wetboek Economisch Recht (Code of Economic Law) 
Koninklijk besluit van 10 juli 2016 tot wijziging van het Koninklijk Besluit van 5 
juli 2004 betreffende de erkenning van havenarbeiders in de havengebieden die 
onder het toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de 
havenarbeid (Royal Decree of 10 July 2016 amending the Royal Decree of 5 July 
2004 on the recognition of dockers in the port areas falling within the scope of the 
Law of 8 June 1972 on dock work) (the contested decree in the main proceedings)  
Wet van 5 december 1968 betreffende de collectieve arbeidsovereenkomsten en 
de paritaire comités (Law of 5 December 1968 on collective labour agreements 
and joint committees)  
Wet van 8 juni 1972 betreffende de havenarbeid (Law of 8 June 1972 organising 
dock work) 
Brief summary of the facts and the procedure in the main proceedings 
1 The contested decree amends the Koninklijk Besluit van 5 juli 2004 betreffende 
de erkenning van havenarbeiders in de havengebieden die onder het 
toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid 
(Royal Decree of 5 July 2004 on the recognition of dockers in the port areas 
falling within the scope of the Law of 8 June 1972 on dock work). 
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2 Those amendments were pursuant to a letter of formal notice from the European 
Commission of 28 March 2014. 
3 According to the order for reference, the Commission was of the opinion that the 
rules concerning dockers constituted an infringement of Article 49 TFEU. In 
essence, the Commission stated that the Belgian rules concerning the employment 
of dockers discouraged foreign undertakings from setting up establishments in 
Belgium, in that they did not have a free choice of staff but were obliged to have 
recourse to recognised dockers, even for logistical tasks. Moreover, the 
deployability of those dockers was limited from a geographic point of view. 
According to the order for reference, the Commission notified the Belgian State 
on 17 May 2017 that the infringement procedure was being terminated. 
Main submissions of the parties to the main proceedings  
4 A number of pleas which fall exclusively under national law were rejected by the 
referring court. 
5 The applicants in the main proceedings claim that the contested decree infringes 
fundamental freedoms under European law relating to freedom of movement and 
competition rules, each read in conjunction with Article 106(1) TFEU. 
6 More specifically, the applicants claim that the contested decree, which was 
adopted pursuant to a letter of formal notice issued by the European Commission 
on 28 March 2014, apparently sought to liberalise the labour market but that, in 
essence, seven unnecessary and disproportionate restrictions were reaffirmed or 
added to existing legislation on dock work.  
7 First restriction: the requirement of recognition of all dockers not involved in 
logistics by an Administrative Commission composed of employer organisations 
and employee organisations. On the employer side, participation is limited to 
recognised local employer associations and, likewise, on the employee side, to 
existing representatives (‘closed shop’). According to the applicants, that 
requirement leads to an artificial closure of the labour market by monopoly 
holders. There is also a lack of basic procedural safeguards because, for example, 
there is no provision either for a time limit within which that commission must 
take a decision or for appeal procedures. In addition, recognition for inclusion in 
the pool means taking into account the need for manpower, thereby hampering 
free access to the labour market: the Administrative Commission, within which 
the trade unions have a right of veto, can continue to subject the labour market to 
a fixed number of workers and thus exclude ‘outsiders’. 
8 Second restriction: according to the applicants, the contested decree introduces 
two new exclusive rights. First, medical fitness for dock work must be assessed by 
the (exclusively competent) external service for prevention and protection at the 
work with which the recognised employer organisation is associated and, second, 
the candidate docker must pass the psychotechnical tests conducted by the body 
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designated for that purpose by the same recognised employer organisation. 
According to the applicants, that new double monopoly reinforces the existing 
monopoly of the local employer associations. The liberalisation of the labour 
market is therefore entirely illusory.  
9 Third restriction: the liberalisation of access to the dock-work market for non-
pool workers, that is to say, the workers who conclude a contract directly with an 
employer, is purely theoretical since the duration of the recognition of those non-
pool workers is limited to the duration of their employment contract. In the event 
that the worker in question wishes to work again as a docker, with the same or a 
different employer, he must go through the full recognition procedure once again. 
Both for dockers who were initially (or repeatedly) recruited for a short period 
(for example, daily or weekly contracts) and for the employer(s) concerned, such a 
restriction is unrealistic and prohibitive, unnecessary and disproportionate. 
Employment outside the pool is made unattractive and the contested decree seeks 
to prevent a real opening up of the labour market.  
10 Fourth restriction: the applicants challenge the unnecessary, unjustified and 
excessively long transitional arrangement — until 1 July 2020 — provided for in 
the contested decree.  
11 Fifth restriction: the automatic recognition of all current dockers as dockers 
included in the pool erodes the possibility of direct employment by the employer 
of (experienced) dockers.  
12 Sixth restriction: according to the applicants, unnecessary new restrictions are 
introduced on the right of employers and their workers to perform work or have 
work performed in a port area other than the one where the worker concerned has 
been recognised. Such restrictions do not exist anywhere else in the European 
Union.  
13 Seventh restriction: unnecessary new obstacles to the employment of workers who 
perform logistical tasks are introduced. Those workers are required to hold a 
security certificate. Decided on was the so-called Alfapass card, which was 
introduced for the purpose of combating terrorism and has now been extended to 
logistics companies based in the port area, without any justification and in stark 
deviation from what is customary elsewhere in the European Union. The company 
Alfapass bvba is controlled by the monopolistic Antwerp port employer 
association Cepa, and Alfaport, the Antwerp-based private-sector port federation, 
which further reinforces the monopolistic position of the employer association 
concerned. Moreover, the Alfapass results in considerable additional cost for the 
employer. 
14 The restrictions summarised above go beyond what is necessary to achieve the 
public interest objectives pursued and cannot be justified. The overriding reasons 
in the public interest put forward by the defendant are unconvincing.  
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15 The applicants further submit that the contested decree also infringes 
Article 106(1) TFEU by taking measures in respect of the employer associations, 
the external services for prevention and protection at the work with which they are 
associated and the bodies designated by them for conducting the psychotechnical 
tests, all of which are granted an exclusive right, measures which lead to an 
infringement of the freedom of establishment. 
16 According to the applicants, the aforementioned restrictions also constitute an 
infringement of Articles 101 and 102 of the TFEU, in conjunction with 
Article 106(1) TFEU. After all, the contested decree reaffirms, reorganises and 
reinforces the exclusive rights and controlling powers of the local employer 
organisations, which thereby continue to control access to the labour market, 
directly and indirectly. Furthermore, the members of those employer associations 
enjoy a collective monopoly on providing goods handling services in the port 
areas. Such a competition-restricting — if not eliminating — structure distorts to a 
significant extent normal competition or makes it impossible.  
17 According to the applicants, it cannot be inferred from the fact that, for policy 
reasons, the European Commission ultimately closed the infringement procedure 
subject to monitoring that the contested decree and the dock-work regulations 
thereby amended are in accordance with EU law.  
18 The defendant disputes that the contested decree breaches the freedom of 
establishment or other freedoms and submits that neither the Commission’s letter 
of formal notice nor the case-law of the Court of Justice cited by the applicant 
provide sufficient evidence that there has been any breach. The defendant claims 
that the Commission did not close the infringement procedure for policy reasons 
but because it was responding to the concerns it had expressed.  
19 The applicants have not shown that the contested decree constitutes direct or 
indirect discrimination that can infringe the Treaty provisions, since all 
companies, regardless of where they are established, are subject to those rules. 
Companies from other Member States are not placed in a legally or factually more 
disadvantageous position than national companies. Even if the contested decree 
were directly or indirectly discriminatory, the applicants would be required to 
demonstrate specifically what disadvantage they suffered in the setting up or 
running of their business.  
20 In addition, the defendant contends that, even if restrictions did exist (which it 
disputes), the regulation of dock work, of which the contested decree forms part, 
is a necessary and proportionate arrangement which is justified, in particular 
because it simultaneously (1) guarantees improved livelihoods for dockers, (2) 
provides sufficient flexibility because those dockers are (or can be) deployed in a 
way that takes into account the constantly fluctuating nature of the work supply, 
and (3) ensures the quality of dock work and the security of dockers. 
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21 As regards the alleged breaches of the competition rules, the defendant submits 
that the applicants misrepresent the facts and the position of the employer 
organisations, that the current system is actually more flexible than the previous 
one and that the Commission had made no observations from the perspective of 
Articles 101 and 102 TFEU, in conjunction with Article 106(1) TFEU. Moreover, 
the applicants adduce no evidence of breach of competition rules and some of the 
rights and powers of employer organisations cited by them follow from legislation 
other than the contested decree.  
Brief summary of the reasons for the referral 
22 The defendant in the main proceedings had argued that the situation at issue was a 
purely internal one, as a result of which the TFEU was not applicable. However, 
in line with the applicants’ position, the referring court is of the view that there are 
several cross-border aspects in the present case and that, therefore, there is no 
question of a purely internal situation.  
23 The interpretation of the fundamental freedoms enshrined in the TFEU is 
important in the present case because the referring court is required to assess the 
legality of a decree which regulates dock work and subjects it to certain 
restrictions and which applies to all workers and employers without distinction of 
nationality who perform work or who have work performed in a port area.  
24 The referring court finds that the Treaty articles concerning the freedom of 
movement are fundamental rules for the European Union and that any obstacle to 
those freedoms, however minor, is prohibited. Measures which may hinder the 
utilisation of the fundamental freedoms guaranteed in the TFEU or make them 
less attractive may nevertheless be permissible provided that they pursue an 
objective in the public interest, are suitable for securing the attainment thereof and 
do not go beyond what is necessary to achieve the stated objective.  
25 According to the referring court, it is necessary, first, to examine whether the 
restrictions on the recruitment of recognised dockers inside and outside the pool 
and the manner of decision-making of the Administrative Commission are 
compatible with the provisions concerning free movement as guaranteed by the 
TFEU. As regards the lack of an appeal procedure alleged by the applicants, 
however, the referring court finds that under Belgian law (Article 583(4) of the 
Gerechtelijk Wetboek), a positive or negative decision on the grant of recognition 
as a docker by the Administrative Commission can indeed be challenged directly 
by means of a jurisdictional appeal.  
26 The question then arises as to whether it is proportionate that only an external 
service for prevention and protection at work involving the local employer 
organisation may declare the candidate docker medically fit for dock work. The 
same question arises with regard to the psychotechnical tests, with the referring 
court pointing out that foreign workers, too, should have to prove that they meet 
comparable conditions for dock work. According to the referring court, the 
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question also arises with regard to the professional competence tests that must be 
taken. It also doubts whether the requirement of having an employment contract is 
appropriate in view of the objective pursued by the regulator of ensuring the 
security of dock work.  
27 Furthermore, with regard to the duration of the recognition and the detailed 
transitional arrangements, the referring court also questions whether they are 
compatible as such with EU law.  
28 The contested decision means, in concrete terms, that, as a transitional measure, 
the employment contract should initially be concluded for an indefinite period: 
from 1 July 2017 for at least two years, from 1 July 2018 for at least one year and 
from 1 July 2019 for at least six months. The duration will be able to be 
determined freely only from 1 July 2020.  
29 As long as the worker has an employment contract, he is a recognised docker, and 
every time he obtains an employment contract he can apply for recognition, which 
also means that, regardless of the reason for terminating the employment contract 
(short contracts, too), he must go through the recognition procedure repeatedly. In 
the light of the objective of the contested decree — guaranteeing the security of 
dockers — the question arises, according to the referring court, as to the 
appropriateness and proportionality of that measure in the light of the overriding 
reason in the public interest.  
30 According to the referring court, if the employment status of the recognised 
docker is less attractive than that of the docker included in the pool, this may have 
the effect of limiting the attractiveness of dock work outside the pool and the 
availability of such dockers, resulting in an unjustified restriction on freedom of 
movement.  
31 Moreover, it must not be made more difficult for a foreign worker to be part of the 
pool than a Belgian worker. In that light, and taking into account the requirement 
of ‘need for manpower’ to be included in the pool — which applies to domestic 
and foreign workers — the question arises as to whether that scheme in its entirety 
is compatible with free movement and does not go beyond what is necessary to 
achieve the desired security objective.  
32 Furthermore, the automatic recognition of all current dockers as ‘dockers included 
in the pool’ implies that employers are not entitled to retain good workers by 
entering into a permanent contract with them directly and offering them job 
security according to general labour law rules. Again, states the referring court, 
the question arises as to whether such a measure is appropriate and proportionate 
to the objective pursued and is therefore compatible with the fundamental freedom 
of establishment and free movement of workers.  
33 The question also arises as to whether the obligation to lay down, via a collective 
agreement, the conditions and detailed rules under which a docker may be 
employed ‘in a port area other than that where he was recognised’ is a measure 
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which is reasonable and proportionate (defendant’s position) or whether, ‘from a 
security point of view, it is not reasonable to understand why mobility between 
different port areas should be restricted or subject to additional conditions’ 
(applicants’ position). 
34 Finally, there is the issue of workers who carry out logistical work needing to 
have a security certificate and the question of whether that is a measure aimed at 
security in general and therefore also at the workers concerned. The referring 
court takes the view that, taken on its own, that does not constitute an 
infringement of the provisions the applicants consider to have been infringed. The 
question does indeed arise as to whether the measure — interpreted as meaning 
that the aforementioned security certificate must be applied for anew with each 
contract, undoubtedly entailing an administrative burden which, even with 
(successive) short-term monthly, weekly or daily contracts, must be repeated each 
time — is proportionate in the light of the freedom of establishment and the free 
movement of workers. In that regard, for the sake of completeness, the order for 
reference notes that, in the case of temporary agency work, under Belgian law the 
employment contract is concluded by the worker not with the third-party user, but 
with the employment agency.