OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

delivered on 30 April 1985 ( *1 )

Mr President,

Members of the Court,

1. Background

Mr Peter Steinhauser, a German national living in Biarritz, is an artist by occupation. On 12 February 1983 he informed the local authorities of his intention to participate in a tendering procedure for the allocation of rented lockups (known as ‘crampones’), that is to say old sheds formerly used by local fishermen. These lockups are owned by the City of Biarritz and are at present used for exhibitions of works of art which are for sale.

On 1 March 1983, however, the Mayor of Biarritz informed Mr Steinhauser that his application could not be considered on the ground that he was not a French national. Article 3 (2) of the schedule of conditions makes the allocation of a rented lockup conditional on French nationality. Mr Steinhauser brought an action before the Tribunal administratif [Administrative Court], Pau, for the annulment of the Mayor's decision on the ground that it was contrary to Article 52 of the EEC Treaty. Although the national court considered Article 52 to be directly applicable, it was uncertain whether that provision also relates to measures which are not directly concerned with the right to take up a specific occupation but merely lay down conditions for the letting of public property belonging to a local authority which include, as in this case, a requirement concerning nationality. It therefore referred the following question to the Court of Justice for a preliminary ruling:

‘Does Article 52 of the Treaty of 25 March 1957 apply to the measures adopted by the City of Biarritz under Article 3 of the schedule of conditions dated 25 January 1983, which is not intended directly to govern the right to take up an activity as a self-employed person but lays down rules for the allocation, on the basis of tenders, of premises owned and made available for letting by the City of Biarritz and makes the acceptance of applications conditional upon nationality? ’

2. Answer to the question submitted

In answering that question I wish to make it clear from the outset that the Mayor of Biarritz's refusal to allow Mr Steinhauser to participate in the tendering procedure is based on discrimination on grounds of nationality. He is treated differently from French artists and is therefore placed at a disadvantage. Such a practice is therefore contrary to Article 7 of the EEC Treaty which embodies a fundamental rule prohibiting discrimination on grounds of nationality that is defined in further detail in Article 52 of the EEC Treaty. In that connection I would refer to the judgment in Case 2/74 Reyners v Belgian State [1974] ECR 631 where the Court recognized that Article 52 also has direct effect.

There is no doubt that the occupation of artist, in which capacity Mr Steinhauser was notified of the local authority's decision, also falls within the field of application of Article 52, having regard to the scope of the right of freedom of establishment, as defined in the second paragraph of that article. That provision expressly states that freedom of establishment includes, in addition to the right to take up the relevant activities, also the right to pursue them under the conditions laid down for its own nationals by the law of the country of establishment. Consequently, discrimination on grounds of nationality is prohibited also in relation to the right to pursue an occupation. The General Programme for the abolition of restrictions on freedom of establishment (Official Journal, English Special Edition IX, Resolutions of the Council and of the Representatives of the Member States, January 1974, p. 7) also contains a clear reference to the conditions which govern the letting of premises and which are relevant in connection with the pursuit of an occupation as in this case. Title III (‘Restrictions’) expressly mentions in the second part of Section A, under (a), differences in treatment relating to ‘ ... contracts, in particular contracts for work, business or agricultural tenancies, and contracts of employment... ’. I would remind the Court that in its judgment in Case 71/77 Thieffryv Conseil de l'ordre des avocats à la Cour de Paris [1977] ECR 765 it expressly stated that the General Programme provides useful guidance for the implementation of the relevant provisions of the Treaty.

In my view, therefore, there can be no doubt that Article 52 acts as a bar to the adoption of a decision refusing to allow Mr Steinhauser to participate in a tendering procedure. For the sake of completeness, I would also refer to the view expressed by the Commission, which I share, to the effect that the exceptions to the right of establishment which are provided for by Articles 55 (official authority) and 56 (public policy) are not applicable in this case, whereas the relevant provisions of the Treaty are applicable to local authorities. Consequently, the fact that the premises in question are public property belonging to a municipality is not relevant as regards the applicability of Article 52.

3. Conclusion

In conclusion, I consider that the question submitted by the Tribunal administratif, Pau, for a preliminary ruling must be answered, as suggested by the Commission in its observations, in the following manner:

‘(1) Article 52 of the EEC Treaty concerning freedom of establishment applies not only to legislative and administrative provisions concerning the right to take up an activity as a self-employed person, but also to any other provision or practice such as that at issue in this case, even where it emanates from a local authority which hinders the right to pursue that activity.

(2) As regards the procedures for the allocation, on the basis of public tenders, of public property belonging to a municipality which is to be made available for letting, the right of establishment guaranteed by the Treaty prohibits discrimination on grounds of nationality against nationals of other Member States.’

( *1 ) Translated from the Dutch.