3.

There remains a third condition. The Community standard must be perfected; it must be sufficient in itself. Its implementation must not depend on measures being subsequently taken by Community Institutions or Member States with discretionary power in the matter. It is in this field that some have raised doubts as to the direct effect of Article 52. What is the truth on this point? The text begins with the following words: ‘Within the framework of the provisions set out below, restrictions on the freedom of establishment… shall be abolished by progressive stages in the course of the transitional period’. It thus refers to Article 54 which specifies the procedure according to which the Community authorities are required to make the provisions necessary for the effective attainment of freedom of establishment. It is therefore necessary to consider that the implementation of Article 52 is dependent on these Community measures being taken. What are they? First a general programme, which must be drawn up by the Council, acting unanimously on a proposal from the Commission and after consulting the Economic and Social Committee and the Assembly, before the end of the first stage. The object of this programme is to set out the general conditions under which freedom of establishment is to be attained in the case of each type of activity and the stages by which it is to be attained. The general programme was adopted by the Council in December 1961, that is within the period laid down. It divides the various activities in question into categories, establishes a schedule of due dates, defines the restrictions which are to be abolished and lays down the general conditions under which liberalization must take place. The adoption of this programme, however, has not completely exhausted intervention by Community authorities, for Article 54 (2) requires, in addition, that the Council shall issue directives and Article 54 (3) includes a certain number of instructions, which are, however, not exhaustive, relating to the objectives of the Council's duties. It is a fact that although for certain categories of activities these directives have been issued so that their liberalization has unquestionably been attained, for others the Council has not fulfilled the task which fell upon it and has not taken the measures laid down in Article 54 before the end of the transitional period. Since this period expired on 1 January 1970, it must therefore be asked whether Article 52 has nevertheless become directly applicable notwithstanding the absence of intervention by the Council in certain at least of the fields where it was required. This is the question which has to be resolved. It appears to me decisive in this respect that Article 52 has mandatorily laid down that all restrictions on the freedom of establishment shall be abolished by the end of the transitional period. This is not exceptional wording in the Treaty. The Treaty offers several examples of provisions based on the same technique, be it for the elimination of customs duties on imports between Member States (Article 13) and on exports (Article 16), or as regards the prohibition on Member States from imposing directly or indirectly internal levies of any kind on the products of other Member States higher than those which are imposed on similar national products. In these various circumstances the obligations imposed on the states had to be progressively fulfilled ‘during the transitional period’, as Article 13 states, or ‘by the end of the first stage’ as laid down in Article 16 or ‘not later than at the beginning of the second stage’, as the third paragraph of Article 95 requires. You have not hesitated to decide that at the expiry of the term laid down in each case the rules contained in these provisions became directly applicable. This is what you decided in connexion with Article 95 in your judgment of 16 June 1966(Lütticke v Hauptzollamt), Case 57/65, Rec. 1966, p. 302. Even more conclusive are the grounds of your judgment of 17 December 1970 (the aforementioned SACE case) in which you affirmed in regard to Article 13 (2) that ‘although the Commission had to decide the rhythm with which charges having an effect equivalent to customs duties on imports had to be abolished during the transitional period, nevertheless it appeared from the very wording of Article 13 that these duties had in any event to be completely eliminated at the latest at the end of the said period; therefore from the end of this period Article 9 must have its full effect on its own’. Pursuing your reasoning, you decided that ‘Articles 9 and 13 (2), taken together, involve, at the latest at the end of the transitional period, a clear and precise prohibition on exacting the said charges, which is not subject to any reservation for the States to subject its implementation to a positive act of national law or to an intervention by the institutions of the Community; it lends itself, by its very nature, to producing direct effects in the legal relations between Member States and their subjects’. The judgment of 26 October 1971(Eunomia, Case 18/71, Rec. 1971, p. 811) says exactly the same thing as regards the progressive abolition of customs duties and charges having an equivalent effect on imports. Finally this case law has recently again been confirmed by the judgment of 19 June 1973 (Case 77/72 Capolongo, [1973] ECR 623). This is important, prime evidence which appears to me to be able, without difficulty, to be related to Article 52 and to lead, on similar grounds, to the recognition that this provision is capable of producing direct effects without intermediate acts either of Community Institutions or Member States being necessary for its implementation. It may be observed that the wording with which Article 52 commences: ‘Within the framework of the provisions set out below …’, has no aim other than that of referring to the procedure by which the progressive abolition of restrictions should in general take place. It certainly does not have the effect either of legally subjecting this elimination to the issue of the directives provided for by Article 54 or of thwarting the time limit which the draftsmen of the Treaty have clearly and in a binding way established for its attainment. Moreover, when they decided otherwise, they said so expressly. This is the case in particular with the medical and allied, and the pharmaceutical professions, for whom under Article 57 (3) ‘the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States’. It is once again useful to compare Articles 52 and 53. I have said that the contents of these two Articles are basically the same; both have as their objective to prohibit every Member State from subjecting the taking up and pursuit of activities as employed persons bv Community nationals ‘to severer rules than those to which nationals are subject’(Costa v ENEL, Rec. 1964, p. 1141 mentioned above). The only difference between these provisions is that with Article 53 the prohibition on new restrictions came into force with the entry into force of the Treaty, whereas Article 52, which required the abolition of existing restrictions, was not to take effect until the end of the transitional period. Finally it is proper to enquire whether by inviting the Council to issue certain directives to implement Article 52, the draftsmen of the Treaty have given it a margin of discretionary power such that the effective fulfilment of the obligations which this Article imposes would have been possible only by means of these measures. In common with the majority of writers (Rambow — The end of the transitional period — CMLR 1968/69; Schrans — SEW 1970, p. 253; Mégret — he droit de la Communauté économique européenne, Vol. 3, 1971, p. 90) I think that the Council had non-discretionary powers, (competence liée) as did moreover the Member States, and that it was legally bound to proceed to the elimination of all restrictions on freedom of establishment based on nationality, whether direct or disguised. No doubt it had on the one hand power of deciding the pace at which the liberalization of the activities had to take place with regard to the various categories — this was moreover provided for in the general programme — and it could on the other hand decide the conditions under which the freedom of establishment should be attained. Article 52, however, imposed on it in any event an obligation to achieve a particular state of affairs by a particular date. The Council did not have the power either to escape this obligation or to alter its content. The Member States had the same obligation to achieve this state of affairs, with the same conditions, and the failure of the Council to take certain prescribed implementing measures within the period specified did not in any way authorize them to set themselves against the principle which it contains. Moreover, as we have seen, this Article does not prevent a State from laying down rules as to the conditions for taking up and pursuing activities as self-employed persons, provided at least that nationals of other Member States are assured in this field of a treatment similar to that which nationals enjoy. As to the particular measures referred to in Article 57 relating in particular to the mutual recognition of diplomas or the coordination of provisions laid down by law, regulation or administrative action in Member States concerning the taking up and pursuit of activities as self-employed persons, they constitute a useful complement to the practical attainment of equality of treatment, but they do not appear to me to be a legally necessary condition. The direct applicability of Article 52 is not dependent on the taking of these measures save in the special case of the medical and pharmaceutical professions. I therefore consider, first, that the fact that the Treaty has provided for the intervention, in the form of directives by the Council, of measures intended to attain the objectives of Article 52 does not suffice to exclude the direct effect of this provision; and secondly, that the expiry of the transitional period marks the beginning of the direct applicability of this provision, although the directives in question, or some of them, had not yet been issued. I have the less hesitation in proposing this interpretation since in the case submitted to the Belgian Conseil d'État it is in its purest form, so to speak, that the problem of equality of treatment arises, in the field, which is perfectly circumscribed, of the condition of nationality. It appears to me to result plainly from Article 52, which creates rights in favour of Community nationals, that a Member State cannot legally place such a condition of nationality, or of reciprocity, when nationality is lacking, in the way of a national of another Member State, who fulfils the conditions of residence and diplomas required by the national law, without infringing the equality of treatment which constitutes the very foundation of this provision of the Treaty.