61978C0110
OPINION OF MR ADVOCATE GENERAL WARNER
DELIVERED ON 28 NOVEMBER 1978
My Lords,
These two cases come to the Court by way of references for preliminary rulings by the Tribunal de première instance of Tournai.
A quick reading of the Orders for Reference might lead one to think that they raise only two relatively unimportant questions, the first being a narrow question of interpretation of Council Directive No 67/43/EEC of 12 January 1967 (Official Journal 140/67 of 19 January 1967) on the attainment of freedom of establishment and freedom to provide services in respect of certain activities of self-employed persons, and the second being a question of interpretation of an Article of the EEC Treaty the effect of which, since the expiration of the transitional period, is largely spent, namely Article 62, forbidding Member States to introduce any new restrictions on the freedom to provide services in fact attained at the date of the entry into force of the Treaty.
As, however, has been apprehended by all those who have submitted observations to this Court, the cases in truth raise wider questions of interpretation of the provisions of the Treaty about the freedom to provide services, questions the answers to which are pointed to, but not in all respects given, by the Judgments of the Court in Case 33/74 the Van Binsbergen case [1974] 2 ECR 1299, Case 36/74 Walrave and Koch v UCI, ibid. p. 1405 and Case 39/75 the Coenen case [1975] 2 ECR 1547.
The facts are these.
There are pending before the Tribunal at Tournai prosecutions of persons who are alleged to have committed offences against a Belgian Arrêté Royal of 28 November 1975 relating to fee-charging employment agencies. Article 6 of that Arrêté Royal makes it unlawful to conduct a fee-charging employment agency for persons in the entertainment industry without a licence from the Minister responsible for employment. Article 20 provides that foreign employment agencies for such persons may not, in the absence of a reciprocal convention between Belgium and their country, place anyone in employment in Belgium except through an agency holding a licence; and that, in such a case, each agency is to receive half the prescribed commission. Article 27 provides for the punishment, by imprisonment for between eight days and one year, or by a fine of between 100 and 5000 francs, of any person offending against the Arrêté Royal. It provides in particular, by virtue of paragraph 3, for the punishment in that manner of any person who resorts to an unlicensed fee-charging employment agency and, by virtue of paragraph 5, for the punishment in like manner of any person conducting a foreign employment agency who places anyone in employment in Belgium in disregard of the provisions of Article 20.
In Case 110/78 the Defendants are Mr Willy Van Wesemael of Ath, in Belgium, who is described as an ‘ouvrier de café’, and Mr Jean Poupaert, who carries on at Lille, in France, under the name of ‘Jean-Pierre Panir’, the business of an employment agency for entertainers. It appears that Mr Van Wesemael organizes each year at Ath an entertainment on the occasion of that town's trade fair. In March 1976 he engaged, through Mr Poupaert's agency, a French entertainer called Yves Lecocq to perform at Ath for one night on 13 August 1976. Mr Poupaert says that he provided that service from his office in Lille, to which Mr Van Wesemael went to sign the contract with Mr Lecocq. According to Mr Van Wesemael the reason why he employed Mr Poupaert was that the latter's commission was only 10 % whereas the Belgian employment agency which he had first consulted charged 25 %. Mr Van Wesemael is being prosecuted under paragraph 3 of Article 27 of the Arrêté Royal; Mr Poupaert under paragraph 5.
In Case 111/78 the Defendants are Signor Romano Follachio, who is a restaurateur at Bon-Secours, in Belgium, and Mr Robert Leduc, who runs at Valenciennes, in France, an employment agency for entertainers called the ‘Agence Robert Trebor’. It appears that, through Mr Leduc's agency, Signor Follachio engaged a number of French entertainers for a three-day festival at Bon-Secours in October 1976. There again it seems that the reason for the choice of a French agency rather than a Belgian one was the much lower cost. Signor Follachio is being prosecuted under paragraph 3 of Article 27; Mr Leduc under paragraph 5.
Mr Poupaert and Mr Leduc both hold licences issued to them in France under French legislation corresponding to the Arrêté Royal in question, namely Articles L 762 - 3 et seq. of the Code du Travail. It is however common ground that they do not hold Belgian licences and that there is no relevant reciprocal convention (other than the EEC Treaty) between Belgium and France.
In both cases the ‘Chambre Syndicale des agents artistiques et impresarii de Belgique’ has intervened against the Defendants as ‘partie civile’. Indeed it appears that these prosecutions are incidents in a wider dispute between that association and the ‘Syndicat National des Agents Artistiques de France’ as to the compatibility of the Arrêté Royal with the Treaty.
Mr Poupaert and Mr Leduc say that the latter association, to which they belong, interprets the Treaty as entitling licensed Belgian agencies to provide their services freely in France and that it does not seek to prevent them from doing so.
In Case 111/78 there is an additional ‘partie civile’ Mr Albert Gérard who owns an employment agency for entertainers at Liège and who was disappointed in his hope of earning commission for arranging the contracts for the festival at Bon-Secours. He claims from the Defendants compensation of 10000 francs and interest.
The Orders for Reference evince that the attention of the Tribunal de première instance of Tournai was directed to two points only.
One was whether Articles 6 and 20 of the Arrêté Royal of 28 November 1975 introduced ‘new restrictions’ contrary to Article 62 of the Treaty.
As to that the Tribunal states that the Arrêté Royal repealed an earlier Arrêté Royal of 10 April 1954 relating to the operation of fee-charging employment agencies, Articles 5 and 15 of which had contained the same restrictions. Thus the Arrêté Royal of 28 November 1975 merely re-enacted pre-existing law. From that the Tribunal concluded that there had been no breach of Article 62. I will say at once that I agree that the mere repeal and re-enactment of old restrictions does not constitute the introduction of new restrictions within the meaning of Article 62.
The other point considered by the Tribunal was whether employment agencies for entertainers had been ‘freed’ for the purposes of Articles 52 and 59 of the Treaty by Directive No 67/43/EEC.
That Directive was adopted by the Council pursuant to Articles 54 and 63 of the Treaty in implementation of the General Programmes for the abolition of restrictions on freedom of establishment and of restrictions on freedom to provide services that had themselves been adopted by the Council on 18 December 1961Official Journal No 2, 15 January 1962, pp. 32/62 and 36/62). In framing both the timetable prescribed by those General Programmes and some of the Directives adopted in implementation of them the Council listed the economic activities concerned by reference to the ‘Indexes to the International Standard Industrial Classification of All Economic Activities’ (or ‘ISIC’) published by the Statistical Office of the United Nations, the version used being that resulting from the first Revision of those Indexes (made in 1958).
Directive No 67/43/EEC is expressed by its title to concern ‘the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with:
1.
matters of “Real Estate” (excluding 6401) (ISIC Group ex 640)
2.
the provision of certain “Business services not elsewhere classified” (ISIC Group 839).’
Article 1 of the Directive provides in general terms, by reference to the provisions of the General Programmes, for the abolition of restrictions on freedom of establishment and freedom to provide services ‘affecting the right to take up and pursue the activities specified in Articles 2 and 3 of this Directive’.
Article 2 specifies the activities concerning real estate to which the Directive is to apply.
Article 3, which is parenthetically headed ‘(Business services not elsewhere classified)’ is, so far as material, in the following terms :
‘1.
The provisions of this Directive shall apply also to activities of self-employed persons engaging in business services not elsewhere classified as referred to in Annex I to the General Programme for the abolition of restrictions on freedom of establishment (ISIC Group 839, but excluding the following activities) :
—
journalism;
—
activities of customs agents;
—
advice on economic, financial, commercial, statistical and labour and employment matters;
—
debt collections.
2.
Pursuant to paragraph 1 of this Article, the following groups of activities fall within the scope of this Directive:
(a)
private employment agencies;
(b)
…’
The relevant question therefore is whether private employment agencies for persons in the entertainments industry are within Group 839 of the ISIC (Rev. 1).
The Tribunal came to the conclusion that they were not. The Commission has submitted before us that in this it was right and I agree.
In Part I (B) of the ISIC, which lists the ‘Divisions, Major Groups and Groups’ of economic activities, one finds (at pp. 18-19) that Major Group 83 headed ‘Business Services’, comprises Groups 831 ‘Legal Services’, 832 ‘Accounting, auditing and bookkeeping services’, 833 ‘Engineering and technical services’ and 839 ‘Business services not elsewhere classified’, whilst Major Group 84 headed ‘Recreation Services’ comprises Groups 841 ‘Motion picture production, distribution and projection’, 842 ‘Theatres and related services’ and 843 ‘Recreation services, except theatres and motion pictures’.
In Part I (C), which contains the ‘Detailed Classification’, Group 839 is (at pp. 40-41) worded as follows:
‘Business services not elsewhere classified
Agencies for advertising, credit and financial reporting, adjustment and collection of bills; duplicating, blueprinting, photostating, addressing, mailing and stenographic services; compiling and selling classified mailing lists; employment agencies; news gathering and reporting agencies, journalists and writers; fashion designers; business consultants not elsewhere classified.’
Groups 841 and 842 are as follows:
‘841
Motion picture production, distribution and projection
Production and distribution of motion pictures, and the operation of cinemas; services allied with motion picture production and distribution such as film processing, editing, renting and repairing of equipment; casting bureaus.
842
Theatres and related services
Theatres, opera companies, concert organizations and stock companies; services such as theatrical employment agencies and booking agencies; radio and television broadcasting studios; dance bands, orchestras and entertainers operating on a contract or fee basis; phonograph recording.’
Thus ‘casting bureaus’ and ‘theatrical employment agencies’, which are expressly mentioned in Groups 841 and 842 respectively, cannot be regarded as ‘not elsewhere classified’ for the purposes of Group 839. Group 843, comprising recreation services other than motion pictures and theatres, mentions no sort of employment agency, but no-one has suggested that anything turns on that.
For the sake of completeness I should mention that Part II of the ISIC, containing the ‘Numeric Index’ lists under Group 839 ‘Employment Agency, Excluding Theatrical and Radio’ (see p. 174), whilst Part III, containing the ‘Alphabetic Index’ has, (at p. 226) the following entries:
‘—
Employment agency, excluding theatrical and radio: 839
—
Employment agency, radio: 842
—
Employment agency, teachers: 839
—
Employment agency, theatrical: 842’
Such are the reasons for which I agree with the Tribunal of Tournai and with the Commission that Group 839 does not include the kind of employment agency here in question.
Despite the conclusions it had reached, the Tribunal of Tournai took the view that it should refer to this Court the question of the conformity of the Arrêté Royal with the EEC Treaty and ask it to rule ‘in particular but not exclusively’ (‘notamment, et non limitativement’) on four questions.
Of those questions the first two relate to the interpretation of Directive No 67/43/EEC. In my opinion they will be sufficiently answered if Your Lordships rule that the Directive does not apply to fee-charging employment agencies for entertainers because these are not within Group 839 of the ISIC.
The third question relates to the interpretation of Article 62 of the EEC Treaty. It would in my opinion be appropriately answered by a ruling that that Article does not (by itself) forbid the repeal and re-enactment of restrictions that existed before the entry into force of the Treaty.
The fourth question is in these terms:
‘If the said fee-charging employment agencies for entertainers are not classifiable under Group 839 of the ISIC international classification does the Court confirm the interpretation according to which they fall within Group 842 which has not yet been freed?’
It appears to me that the circumstance that the Tribunal asked those four questions ‘in particular but not exclusively’, coupled with the assumption expressed in the fourth question that, if fee-charging employment agencies for entertainers are within Group 842, they have ‘not yet been freed’, requires this Court to go deeper.
From the cases that I cited at the outset, namely the Van Binsbergen, Walrave and Koch and Coenen cases, the following general principles may be deduced:
(1)
Since the end of the transitional period the first paragraph of Article 59 of the Treaty has, with direct effect in the Member States, prohibited restrictions on freedom to provide services within the Community.
(2)
The prohibition extends to any restrictions on a person providing a service ‘by reason in particular of his nationality or of the fact that he does not habitually reside in the State where the service is provided, which do not apply to persons established within the national territory or which may prevent or otherwise obstruct the activities of the person providing the service’ (Paragraph 10 of the Judgment in the Van Binsbergen case and paragraph 6 of the Judgment in the Coenen case).
(3)
The General Programme and the Directives envisaged by Article 63 of the Treaty have lost, since the end of the transitional period, their function of abolishing restrictions on freedom to provide services. They retain the function of introducing into the laws of Member States ‘a set of provisions intended to facilitate the effective exercise of this freedom, in particular by the mutual recognition of professional qualifications and the coordination of laws with regard to the pursuit of activities as self-employed persons’ (Paragraph 21 of the Judgment in the Van Binsbergen case).
In laying down those general principles the Court was of course following its earlier decision in Case 2/74 Reyners v Belgium [1974] 1 ECR 631, relating to freedom of establishment. The law on this has been further developed in Case 71/76 the Thieffry case [1977] ECR 765 and Case 11/77 the Patrick case, ibid. p. 1199.
Those general principles are subject to express exceptions contained in the Treaty. Thus they do not apply to services not normally provided for remuneration or to services governed by the provisions of the Treaty relating to freedom of movement for goods, capital or persons (Article 60). Nor do they apply to services in the field of transport, which are governed by the provisions relating to transport (Article 61 (1)).
As regards banking and insurance services connected with movements of capital their application is limited, though not excluded, by Article 61 (2). They do not apply to activities which, in a given Member State, ‘are connected, even occasionally, with the exercise of official authority’ (Articles 66 and 55), an exception which must be interpreted in the light of the Judgment of the Court in the Reyners case. Nor do they ‘prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health’ (Articles 66 and 56), an exception which must be read in the light of a number of Directives issued by the Council and of a number of Judgments of this Court, of which the last in date is, I think, that in Case 30/77 Reg. v Bouchereau [1977] ECR 1999.
No-one has suggested that any of those exceptions applies here.
To those exceptions must be added a qualification that has been held by the Court to be implicit in the Treaty and the application of which in the circumstances of these cases appears to me to be the main question that they raise.
Before I advert to that, however, I must deal with two points made by the Belgian Government, both of which were much pressed upon us at the hearing by Counsel for the Chambre Syndicale des agents artistiques et impresarii de Belgique.
Of those points the first is based on Convention No 96 of the International Labour Organization.
That Convention, which according to its preamble, may be cited as ‘The Fee-Charging Employment Agencies Convention (Revised) 1949’, but which I find it more convenient, as did Counsel, to refer to as ‘Convention No 96’, has been ratified, so the Commission has told us, by seven of the Member States of the Community, namely all of them save Denmark and the United Kingdom.
The Convention is expressed to be ‘complementary to the Employment Service Convention, 1948, which provides that each Member for which the Convention is in force shall maintain or ensure the maintenance of a free public employment service’.
Part II of the Convention provides for the progressive abolition of fee-charging employment agencies conducted with a view to profit and for the regulation of other agencies. Part III provides only for the regulation of fee-charging employment agencies, including those conducted with a view to profit. Article 2 (in Part I of the Convention) gives a Member of the ILO ratifying the Convention the option of accepting either Part II or Part III. If a Member accepts Part III it may subsequently notify its acceptance of Part II, in which case Part III ceases to apply to it.
It appears that, of the seven Member States of the Community that have ratified the Convention, all accept Part II, though Ireland and Italy initially accepted Part III.
The relevant provisions of Part II may be summarized as follows. ‘The competent authority’ (an expression which is undefined but which, from the context, appears to mean whatever authority is appropriate in each country) is given by Article 3 a discretion as to the period within which agencies conducted with a view to profit are to be abolished, coupled with a discretion to prescribe different periods for the abolition of agencies catering for different classes of persons. Article 4 provides that, pending their abolition, such agencies shall be subject to the supervision of the competent authority and shall only charge fees and expenses on a scale approved by that authority. That supervision is to be ‘directed more particularly towards the elimination of all abuses connected with the operations of fee-charging employment agencies conducted with a view to profit’. Article 5 permits the competent authority to allow exceptions from the requirement of abolition ‘in respect of categories of persons, exactly defined by national laws or regulations, for whom appropriate placing arrangements cannot conveniently be made within the framework of the public employment service’. It goes on to provide:
‘Every fee-charging employment agency for which an exception is allowed under this Article —
(a)
shall be subject to the supervision of the competent authority;
(b)
shall be required to be in possession of a yearly licence renewable at the discretion of the competent authority;
(c)
shall only charge fees and expenses on a scale submitted to and approved by the competent authority or fixed by the said authority;
(d)
shall only place or recruit workers abroad if permitted to do so by the competent authority and under conditions determined by the laws or regulations in force.’
Article 8 requires appropriate penalties, including the withdrawal when necessary of a licence, to be prescribed for any violation of any law or regulation giving effect to the Convention.
The Belgian Government and the Chambre Syndicale say that the Arrêté Royal here in issue was enacted in compliance with Belgium's obligations under the Convention. Indeed its preamble refers to the Convention and continues:
‘Considérant que les derniers bureaux de placement payants autorisés pour domestiques et gens de maison et pour travailleurs agricoles ont cessé leur activité;
Considérant qu'il ne peut être actuellement convenablement pourvu dans le cadre du service public de l'emploi, au placement des artistes du spectacle et, que l'existence des bureaux de placement payants les concernant doit être provisoirement maintenue et leur contrôle renforcé ou organisé.’
Consistently with the preamble, Articles 2 and 3 by their combined effect, forbid the existence of any fee-charging employment agencies except those for entertainers. The subsequent Articles regulate employment agencies for entertainers in the manner envisaged by the Convention. They are to operate only until the responsible Minister considers that the public employment service can efficiently ensure the placing of entertainers — see Article 17, which, in combination with Article 10, provides for the renewal of licences, on the occurrence of that event, for only three further years.
Neither the Belgian Government nor the Chambre Syndicale went so far as to submit that, if Belgium permitted fee-charging employment agencies licensed in France to provide their services in Belgium, Belgium would be in breach of the Convention. That certainly, albeit perhaps surprisingly, is not so, because the Convention (by virtue of Article 5 (d)) requires each ratifying Member of the ILO to regulate the provision of services abroad by employment agencies established on its territory and is silent as to any obligation of a Member to regulate the provision of services on its territory by agencies established abroad. Thus, under the scheme of the Convention, the function of regulating the provision of services in Belgium by agencies established in France falls to be discharged by the competent French authority.
The point made by the Belgian Government and by the Chambre Syndicale is, if I have understood their submissions correctly, that it would be strange if Article 59 et seq. of the Treaty had the consequences for which the Defendants and the Commission here contend, because that would pro tanto defeat the policy underlying the Convention, which is also Belgian policy. In my opinion the answer to that, and I hope that I shall be acquitted of discourtesy if I express it shortly, is that that policy, whatever its merits or demerits, is not Community policy. Neither the Convention, nor anything like it, is part of Community law.
The other point made by the Belgian Government and the Chambre Syndicale is that the Arrêté Royal does not discriminate against theatrical employment agencies established in other Member States of the Community, because any such agency may apply for and obtain a licence under the Arrêté. I found that, I confess, a surprising assertion, because it seemed to me, on a reading of the Arrêté, that some at least of its requirements could only be fulfilled by an agency established in Belgium. It is not for me however, at all events on a reference under Article 177 of the Treaty, to express an opinion as to the interpretation of Belgian legislation, much less to speculate as to the prospects of success, in practice, of an application for a licence under that legislation made by a firm established outside Belgium. From information given to the Court on behalf of the Belgian Government at the hearing and by telex since, it would appear that, whilst licences have in two cases been granted to Dutch nationals having offices in Belgium, there is in fact no case of a licence having been granted to a firm having no establishment in Belgium.
The Belgian Government concedes, at all events, that such a firm, in order to be licensed in Belgium, would have to comply at least with the requirements of Article 8 (8) of the Arrêté Royal as to the deposit in Belgium of prescribed documents, i. e. of the documents prescribed, pursuant to Article 9, by Article 6 of an implementing Arrêté Ministériel of 1 December 1975.
Those documents are:
(1)
Individual cards giving details of each placing effected by the agency;
(2)
A register, which must be in a form prescribed in an annex to the Arrêté Ministériel and be ‘coté et paraphé au greffe du tribunal de commerce du ressort’, also giving details of those placings; and
(3)
A copy of every written contract made as a result of a placing effected by the agency.
There is nothing in the Arrêté Ministériel to suggest that, in the case of an agency established outside Belgium, only placings effected in Belgium need be recorded in those documents. In fact the Arrêté Ministériel does not seem to envisage the possibility of an agency established outside Belgium being subject to its provisions.
Among the other conditions to which an applicant for a Belgian licence is subject, there is, by virtue of Article 8 (6) of the Arrêté Royal, the requirement that he should deposit a ‘cautionnement’ with the Banque Nationale de Belgique, the Caisse des Dépôts et Consignations or the Caisse générale d'Epargne et de Retraite, and the requirement that he should meet certain ‘frais d'enquête’ prescribed by the Minister under Article 9. Those ‘frais d'enquête’ are, by virtue of Article 2 (7) of the Arrêté Ministériel that I have mentioned, fixed at 1000 francs. The ‘cautionnement’ is, by virtue of Article 3 of that Arrêté Ministériel, normally 50000 francs, but it is 100000 francs if the agency concerned wants to be able to place entertainers abroad or recruit them from abroad. It is not stated whether an agency established abroad, and wishing to have a Belgian licence only in order to be able to place entertainers in Belgium, is required to deposit the smaller or the larger sum.
Thus, an agency established outside Belgium, if it wants, even occasionally, to provide a service to customers in Belgium, will be met, if the Belgian Government and the Chambre Syndicale are right, with appreciable administrative and financial obstacles. It would test whether that situation is compatible with the situation envisaged by the authors of Articles 59 to 66 of the Treaty in this way. Suppose that legislation identical to that of Belgium existed in all nine of the Member States. An agency wanting to have a Community-wide business would then need, not only to apply for a licence in each Member State, but also to deposit elaborate documents and a substantial sum of money in each of them. That cannot, in my opinion, be what the authors of the Treaty meant by ‘freedom to provide services’. Nor is it compatible with the concept of a common market. It seems to me to be precisely the sort of thing that this Court had in mind when it spoke, in the Van Binsbergen and Coenen cases, of ‘restrictions … which may prevent or otherwise obstruct the activities of the person providing the service’.
It is noteworthy that the Council has repeatedly placed on record that it holds a similar view. Among instances of that, I take as an example the preamble to Council Directive No 78/686/EEC of 25 July 1978Official Journal L 233 of 24 August 1978, which contains measures to facilitate the effective exercise of the right of establishment by dentists and their freedom to provide services. It recites that ‘in the case of the provision of services, the requirement of registration with or membership of professional organizations or bodies … would … undoubtedly constitute an obstacle to the persons wishing to provide the service …’. Article 15 of the Directive accordingly enjoins the abolition of such requirements, subject to a power for a Member State to provide for ‘automatic temporary registration with or pro forma membership of a professional organization or body or entry in a register, provided that such registration does not delay or in any way complicate the provision of services or impose any additional costs on the person providing the services’; and subject also to a power for a Member State to require a person providing services on its territory, where they involve a temporary stay by him there, to supply, either before or, in urgent cases, ‘as soon as possible after the services have been provided’, a declaration as to them and certificates as to his qualifications.
In my opinion the Belgian Government has, in this case, if I may be pardoned for saying so, misapprehended the true issue.
I said earlier that the main question raised by these cases was, in my view, as to the application to them of a principle that the Court has held to be implicit in the Treaty. To that question I now, lastly, turn.
In his Opinion in the Van Binsbergen case, Mr. Advocate General Mayras stated the relevant problem in these terms, which I quote from the original (Rec. 1974 (2), pp. 1316-1317):
‘… il est essentiel, pour la solution que vous donnerez à la présente affaire préjudicielle, de nous expliquer sur la distinction qu'il y a lieu de faire entre les règles relatives au droit d'établissement et celles qui gouvernent la libre prestation de services.
Il faut, en effet, souligner que le professionnel, ressortissant d'un État membre, “établi”, au sens de l'article 52, sur le territoire d'un autre État membre, est, du fait même de cet établissement, soumis à la loi du pays d'accueil dont la puissance publique peut lui imposer, pour l'accès à son activité et pour son exercice, les conditions mêmes qu'il exige de ses propres nationaux et le soumettre, par conséquent, aux mêmes contrôles.
C'est dire que ce résident étranger, privilégié parce que communautaire, doit certes bénéficier de l'égalité de traitement, mais ne peut se soustraire aux prescriptions du droit national, quand bien même ce droit serait, dans l'avenir, harmonisé avec les législations des autres États de la Communauté.
Le prestataire de services, au contraire, n'est pas, par définition, un résident; il n'est pas “l'établi” …
Dès lors, et c'est un aspect fondamental de la différence qui existe entre, d'une part, les simples prestations, occasionnelles, de services, voire l'activité temporaire et, d'autre part, l'établissement: le prestataire de services a, dans une certaine mesure, la possibilité de se soustraire à l'emprise et au contrôle des autorités nationales du pays où sont fournies les prestations.
Il est aisé de comprendre qu'une telle situation comporte des risques, tant sur le plan de la déontologie que pour la mise en jeu éventuelle de la responsabilité: professionnelle, civile ou même pénale, du prestataire de services …
C'est pourquoi, tout en assurant le respect du principe de non-discrimination, il est nécessaire d'en concilier les exigences avec celles que requiert la protection des particuliers, destinataires des prestations de services, et de tenir compte des nécessaires moyens de contrôle que les autorités nationales doivent pouvoir mettre en œuvre dans ce but.’
In the Van Binsbergen case the Court, after stating the general effect of Article 59 of the Treaty, continued (in paragraphs 12 and 13 of the Judgment):
‘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 being 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; such a situation may be subject to judicial control under the provisions of the chapter relating to the right of establishment and not that on the provision of services.’
In the Coenen case I ventured the opinion that ‘In stating those principles the Court was … recognizing that which was recognized by the authors of the Treaty themselves in Articles 57, namely that there are many professions and trades of such a kind that, unless rules are made and enforced to ensure that those carrying them on are persons of probity and adequate skill, observing appropriate standards, great harm may be suffered by members of the public who are their clients, patients or customers.’ ([1975] 2 ECR at p. 1560).
In the present cases the second principle stated by the Court in the Van Binsbergen case does not apply, because no-one suggests that Mr Poupaert's or Mr Leduc's activities are entirely or principally directed towards Belgium. But the first is relevant because, as is common ground, the main purpose of the Arrêté Royal of 28 November 1975 is to safeguard persons in the entertainment industry and their prospective employers from exploitation by unscrupulous agencies. The question is how, in the particular circumstances, effect is to be given to that principle.
The Commission submitted that the principle would be satisfied if it were held that an agency established in any Member State was free to provide its services without restriction in any other Member State provided that it was subject, in the State where it was established, to rules as to organization, ethics, supervision and liability equivalent to those of the State where the services were to be provided. The Commission further submitted that, where in both States the relevant rules drew their inspiration directly from the same international Convention, such equivalence should be taken for granted.
In view of those submissions the Court caused to be placed before it details of the relevant legislation actually in force in each of the Member States.
As to that the position may, I think, be summarized as follows. In two Member States, namely Italy and Luxembourg, the public employment service has a monopoly; private employment agencies are forbidden. With two exceptions, there is in force everywhere else legislation providing for private employment agencies to be licensed. Although that legislation is not everywhere identical, the safeguards it affords are substantially similar, even in Denmark and Great Britain. Between the Belgian and the French legislation there is virtually no difference. The two exceptions are Northern Ireland and the Netherlands. It appears that there is no relevant legislation in force in Northern Ireland. In the Netherlands there is legislation regulating employment agencies generally, but, so the Commission told us, the Hoge Raad has held it inapplicable to agencies for persons in the entertainment industry because their contracts with their employers are contracts for services and not contracts of service (NJ, 1966, 366).
Of course the state of legislation in the different Member States from time to time cannot be admissible as such as an aid to the interpretation of the Treaty. But consideration of it can help the Court in deciding how, as a practical matter, it may most usefully formulate its answer to a national Court on a question such as the present.
In the circumstances I agree with the Commission to this extent that it would be appropriate for Your Lordships to rule that, since the end of the transitional period, Articles 59 to 66 of the Treaty have rendered it unlawful for a Member State to impose any restriction on the freedom to provide services in its territory of a private employment agency for persons in the entertainment industry established in another Member State and duly licensed to conduct business there, if the legislation under which it is so licensed affords to persons resorting to the agency safeguards substantially similar to those afforded, in the case of an agency licensed in the former Member State, by the legislation of that State. Such a ruling would leave open the question, which does not call for determination in the present cases, whether, and if so to what extent, a private agency licensed in one Member State is free to provide services in another Member State where the public employment service enjoys a monopoly.
I would, however, reject the submission of the Commission according to which it should be taken into account whether the legislation of the Member State in which the agency is established draws its inspiration from an international Convention. Firstly, I can think of no legal principle on the basis of which there could be attributed to a Convention such as Convention No 96 of the ILO a role in Community law. Secondly, the requirements of the Convention (which I have quoted) are expressed so briefly and in such vague terms that they are susceptible of widely divergent application in different States. Thirdly, the situation in the Netherlands (if the Commission is right about it) illustrates that the mere circumstance that a State has ratified the Convention does not entail that it will have relevant or adequate legislation. In truth, to adopt the Commission's suggestion would mean discriminating as between agencies established in different Member States not on the basis of the legal situation actually prevailing in each State but on the basis of an irrelevant criterion.