Opinion of the Advocate General — ECLI:EU:C:2015:505
Date: 2015-07-16
Language of the case: Dutch
Subject matter: Right of establishment;Internal market - Principles;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Netherlands

summary, categorisation and analysis of this case-law, I would refer to the reader to Advocate General Wahl’s Opinion in Joined Cases Venturini (C‑159/12 to C‑161/12, EU:C:2013:529, points 26 to 53). 27 Indeed, an exercise of finding such cross-border elements should not be too difficult. As regards Case C‑340/14, typically also tourists originating from other Member States tend to take boats such as the one of Mr Trijber, whereas concerning Case C‑341/14, the recipients of the services offered by Mr Harmsen, i.e. the prostitutes in question, originate from EU Member States other than the Netherlands. 28 See to that effect e.g. judgment in Cipolla and Others (C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 25). 29 See Müller-Graff, P.-C., in Streinz, R. (ed.), op. cit., Artikel 49 AEUV, point 20. 30 This is the term used in Article 53 TFEU, the legal basis, together with Article 62 TFEU, of Directive 2006/123. I should like to stress that ‘coordination’ as it is used here has, in my view, nothing to do with ‘coordination’ as it is now used in Articles 2, 5 and 6 TFEU, further to the entry into force of the Treaty of Lisbon. 31 Terminology used, for instance, in Articles 114 and 115 TFEU. 32 Terminology used, by now, across the Treaty. 33 Article 117(2) EEC, now Article 151 TFEU: ‘harmonisation of social systems’. 34 See, by way of example, judgment in Centrosteel (C‑456/98, EU:C:2000:402, paragraph 13) where the Court states that Council Directive 86/653/EEC on the coordination of the laws of the Member States relating to self-employed commercial agents (OJ 1986 L 382, p. 17) ‘is intended to harmonise the laws of the Member States governing the legal relationship between the parties to a commercial contract, irrespective of any cross-border elements. Its scope is therefore broader than the fundamental freedoms laid down by the EC Treaty.’ 35 See Davies, G., ‘The Services Directive: extending the country of origin principle, and reforming public administration’, 32 European Law Review, 2007, pp. 232-245, at p. 242. See also Kluth, W., in Calliess, C. and Ruffert, M. (ed.), EUV/AEUV, Beck, 4th edition, Munich 2011, Artikel 59 AEUV, point 24. 36 See Handbook on the implementation of the Services Directive, op cit., p. 24 of the English language version. 37 My emphasis. 38 Article 16 is entitled ‘Freedom to provide services’. According to Article 16(1), first sentence, Member States shall respect the right of providers to provide services in a Member State other than that in which they are established. 39 See proposed amendments 476 and 477 tabled by MEPs Joachim Wuermeling and Klaus-Heiner Lehne respectively, as reproduced in Draft report (PE 355.744v04-00) by MEP Evelyne Gebhardt, rapporteur, document PE 360.091v02-00 of 24.06.2005, at pp. 25 and 26, available at http://www.europarl.europa.eu/RegData/commissions/imco/amendments/2005/360091/IMCO_AM%282005%29360091_EN.pdf. 40 See proposed amendment 11 in Opinion of the Committee on Legal Affairs for the Committee on the Internal Market and Consumer Protection on the proposal for a European Parliament and Council directive on services in the internal market, document 2004/0001(COD) of 01.07.2005, at p. 11, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-353.583 + 03+DOC+PDF+V0//EN&language=EN. 41 Barnard, C., ‘Unravelling the services directive’, 45 Common Market Law Review, 2008, pp. 323-396, at p. 351, appears to have sympathy for such reasoning, even though after subsequently listing the arguments against some parts of the directive applying to internal situations, she concludes at p. 352 that ‘we shall have to await an ECJ ruling on this crucial issue’. 42 See Article 14, point 1, of Directive 2006/123, according to which Member States shall not make access to, or the exercise of, a service activity in their territory subject to compliance with discriminatory requirements based directly or indirectly on nationality. See also judgment in Rina Services and Rina (C‑593/13, EU:C:2015:399, paragraph 35). 43 From the perspective of the prostitutes as service providers the situation could be different. On the assumption that, in Amsterdam, people who rent out premises to prostitutes are typically Dutch who typically (but) have a command of the Dutch and English languages, a prostitute from Hungary or Bulgaria who does not speak either of these languages is discriminated against as compared with one who does and who would, typically, be Dutch. 44 This convention was signed in Warsaw on 16 May 2005. It entered into force on 1 February 2008 in general, further to the ratification of 10 States. It was ratified by the Netherlands on 22 April 2010 and entered into force there on 1 August 2010. The text of the convention is available at: http://conventions.coe.int/Treaty/EN/Treaties/Html/197.htm. The convention also sets up an intergovernmental monitoring system in order to supervise the implementation of the obligations contained in it. 45 Also known as the ‘Palermo Protocol’. Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/ProtocolTraffickingInPersons.aspx. 46 Directive of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ 2011 L 101, p. 1. This directive recognises in its recital 9 the existence of the Council of Europe Convention and the Palermo Protocol while stressing that ‘[c]oordination between international organisations with competence with regard to action against trafficking in human beings should be supported in order to avoid duplication of effort’. 47 To complete the picture, Article 5(3) of the Charter states that trafficking in human beings is prohibited. 48 See Rantsev v. Cyprus and Russia, no. 25965/04, § 282, 7 January 2010. Article 4 of the ECHR finds its functional equivalent in Article 5(1) and (2) of the Charter. 49 See EHR Court, Siliadin v. France, no. 73316/01, paragraph 89, 26 July 2005. 50 See EHR Court, C.N. and V. v. France, no. 67724/09, paragraph 69, 11 October 2011. 51 See EHR Court, C.N. v. The United Kingdom, no. 4239/08, paragraph 69, 13 November 2012. 52 See Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by the Netherlands, First evaluation round, adopted by Group of Experts on Action against Trafficking in Human Beings on 21 March 2014, published by the convention Secretariat on 18 June 2014, GRETA(2014)10, paragraph 59, available at: http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Reports/GRETA_2014_10_FGR_NLD_w_cmnts_en.pdf. 53 The term ‘proportionality’ is more clearly defined in Article 15(3)(c) of Directive 2006/123. 54 See mutatis mutandis with respect to justifications of restrictions in the context of Treaty provisions on the four freedoms and citizenship judgments in Bressol and Others (C‑73/08, EU:C:2010:181, paragraph 75), Rinner-Kühn (171/88, EU:C:1989:328, paragraph 15) and Schönheit and Becker (C‑4/02 and C‑5/02, EU:C:2003:583, paragraph 82). 55 See judgment in Bressol and Others (C‑73/08, EU:C:2010:181, paragraph 65). 56 Ibidem, paragraph 74. At stake was a requirement of residence. 57 See judgment in Commission v Austria (C‑147/03, EU:C:2005:427, paragraph 63) 58 See judgment in Caves Krier Frères (C‑379/11, EU:C:2012:798, paragraph 49). 59 See judgment in Leichtle (C‑8/02, EU:C:2004:161, paragraph 45). 60 See Article 15(3)(c) of Directive 2006/123. 61 One can speak of a language requirement since the City of Amsterdam makes the commitments which Mr Harmsen gave in his operating plan (not to rent out rooms to prostitutes with whom he could not communicate in English, Dutch or any other language comprehensible to him) a condition for granting the authorisation. 62 See judgment in Grauel Rüffer (C‑322/13, EU:C:2014:189, paragraphs 18 et seq.). 63 See, by way of example, judgments in Groener (C‑379/87, EU:C:1989:599, paragraph 20) and Haim (C‑424/97, EU:C:2000:357, paragraph 59). 64 See judgment in Las (C‑202/11, EU:C:2013:239, paragraph 27). 65 See judgment in Commission v Germany (C‑490/04, EU:C:2007:430, paragraphs 70 and 71). 66 See judgments in Groener (C‑379/87, EU:C:1989:599, paragraph 19); Runevič-Vardyn and Wardyn (C‑391/09, EU:C:2011:291, paragraph 85); and Las (C‑202/11, EU:C:2013:239, paragraph 25). 67 Terminology used by the Court in, for instance, judgments in Mutsch (137/84, EU:C:1985:335, paragraph 11) and Bickel and Franz (C‑274/96, EU:C:1998:563, paragraph 13).