2.

Unfortunately, the Milan court has not stated for what reason the accused woman was in Italy as the guest of the Italian defendant. In the absence of this information, the Court can only act on the basis of assumptions. If, as was stated before the Court by Counsel for the two defendants, she was there as an ‘au pair’ employed as a family help to look after the children of the co-defendant, she would undoubtedly come into one of the categories of person upon whom the Treaty confers the right to move freely within the Community. As this would in fact be work performed for a consideration (board and lodging), she could be classified as coming within a master and servant relationship or, if this were not the case, she would at least come under the alternative heading of provision of services. But on the assumption that the Pretore di Milano were to find, on the other hand, that the defendant was in Italy as on ordinary tourist, the question arises whether the protection conferred by the Treaty on the subject of freedom of movement for workers applies to her. It must be borne in mind that, in connexion with the free movement of natural persons, the Treaty recognizes two general categories of persons: employed persons and persons providing services. The latter are envisaged either as being in the position of wishing to establish themselves as self-employed persons in another Member State, in which case they are covered by the provisions on the right of establishment, or in relation to occasional work in a State as self-employed persons on the part of persons established in another Member State, in which case they are appropriately provided for in the chapter on the abolition of restrictions on freedom to provide services. Article 59 of the Treaty prescribes the abolition of restrictions on freedom to provide services in respect of nationals of Member States who are established in a state of the Community other than that of the person for whom the services are intended. In respect of the free movement of persons, the EEC Treaty refers only to those providing services but makes no reference to the persons for whom the services are intended. There is a reference to tourism only in Annex III to the Treaty where, in relation to the movement of capital, it is classified under the ‘invisible transactions’, the liberalization of payments connected therewith being provided for under Article 106 (3). There can be no doubt that tourists normally make use of services in the places which they visit. The Commission contends that, in the capacity of persons for whom services are intended, they must be protected by the provisions of the Treaty on the free movement of persons who provide services. Notwithstanding the silence of the Treaty on this subject, the Commission has always considered tourism to be an activity able to avail itself of the provisions on the free movement of persons. This emerges above all from the report which it made on the General Programme for the abolition of restrictions on freedom to provide services, dated 28 July 1960. This document divides the provision of services into three categories according to whether it involves the movement of the person providing services towards the person receiving them, or the movement of the person receiving services towards the person providing them, or, lastly, according to whether it involves no movement on the part of either, and places the provision of services for the benefit of tourists in the second of these categories. Nor is it possible to ignore the importance of the fact that, from the beginning, both the Council and the European Parliament seem to have regarded tourism as one of the activities to be freed from restriction not only in respect of the movements of capital connected with this economic activity but also in respect of services. This emerges from, in particular, the General Programme adopted by the Council on 18 December 1961 which, under Title V, makes an express reference to tourism in a provision for the abolition of restrictions on payments relating to the services to be freed from restriction. Although what is involved is liberalization in relation to movements of capital, it is abundantly clear from the context that provision to this effect refers to the liberalization of services. The wide interpretation of the effect of the provisions of the Treaty concerning the abolition of restrictions on the provision of services appears, therefore, to have been accepted by the Council which, in Directive No 64/220/EEC of 25 February 1964 and, subsequently, in Directive No 73/148 of 21 May 1973, which were adopted under the aforementioned General Programme and concerned, respectively, the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, required the States to abolish restrictions on the movement and residence of inter alia‘nationals of Member States wishing to go to another Member State as recipients of services’. But if a broad interpretation is placed upon this provision, namely, by including all those who are likely to be recipients of services (which, of course, is a residual concept embracing any self-employment in the tertiary sector), the practical effect is to extend the right of freedom of movement to all nationals of the Member States because every one is actually or potentially a recipient of services. This does not accord with the wording of Article 59 and is inconsistent with the very structure of the Treaty, which provides for freedom of movement in respect of specific categories of professional or trade activities. Within the limits of an interpretation which is wide but does not break new ground, the most that can be done is to recognize freedom of movement for recipients of services also but only in so far as it appears to be indissolubly linked with the right to movement of those who have to provide those services. By placing a wide interpretation upon Article 48, notwithstanding the tenor of subparagraphs (a) and (b) of paragraph (3) thereof (since it is a question here solely of defining the scope of a right which the Treaty expressly confers on the category of person involved and of ensuring that it is given practical effect), it is, in my opinion, possible to recognize workers who have not previously received an offer of employment in another Member State as also having the right to move freely, for this is the effect of Articles 1 and 5 of Regulation No 1612/68 of the Council. However, an extension of the right to freedom of movement, the provision for which is specifically applicable only to persons providing services, to all nationals of the Member States (that is to say, regardless of their capacity as persons providing services) could not be validly justified in law even by placing a wide interpretation upon the rules concerning the abolition of restrictions on the provision of services. In view of its scope, it would even result in removing any consistency from the definition laid down by the Treaty of the categories of persons who can avail themselves of the right to freedom of movement which it secures. In saying this, I am not saying that a priori it is impossible for the Community legislature to extend the privileges of free movement to categories of persons not covered by the Treaty, because provision for this is made in Article 235 of the Treaty itself. But, in order to do so, the Council must act on the basis of that provision and in accordance with the procedure laid down therein. This was not done in the case of the abovementioned Directives, Nos 64/220 and 73/148. This is the conclusion which one reaches on the basis of the wording of the Treaty. In any event, if it is to be recognized that the Community system can evolve of its own accord by, for example, widening the range of persons to whom the provisions of the Treaty apply, even without recourse to the procedure in Article 235, it is essential that the change should meet operational requirements of the system, that it should, accordingly, come within the scope of the aims of the Treaty and, above all, that it should rest on general agreement. In the present case it must be borne in mind that, since the first stages of application of the Treaty, the three Community institutions which participate in the legislative and executive process have expressly considered tourism to be, as such, an acitivity for which freedom of movement is safeguarded by provisions of the Treaty which from that time forward have been directly applicable. No State or other party subject to Community law has ever challenged this situation, at least until the present proceedings in which, however, the only two States who intervened have expressly taken the opposite view. It is true that the recognition of the unrestricted right to enter any Member State enjoyed by the nationals of other Member States seeking employment may in practice lead to the application of the same system to all Community citizens but the question which we have to decide is whether they have a corresponding right. Is it possible to conclude that, in this way, there has been established in the Community legal order a rule of custom and practice on the basis of which tourists can assert a right to claim the same treatment as the States are bound to give to persons providing services? If it were possible to establish that all the States had fully applied to tourists also the provision of the two abovementioned directives concerning recipients of services (on which I have no information), it might not be difficult to draw this conclusion. It is for the Court to decide whether it ought to look at the present state of Community law on this point on the basis of the wording of the Treaty as I have intepreted it, or whether it is possible to indentify elements which suffice to create a new right, if necessary going on, as a preliminary step, to obtain further information on the actual way in which the directives mentioned have been carried out. In any case, it would be a sound rule to avoid the fiction of using the actual wording of the Treaty to justify the extension to all citizens of the Community of a right to freedom of movement which the Treaty intended to apply only to clearly defined categories of persons. The Court which, while fully conscious of the requirements of progress, has always fulfilled its task as guardian of the law, will, of course, reply in a manner which takes due account of all the factors in determining the limits of Community jurisdiction within the framework of the powers laid down, directly or indirectly, by the Treaty.