Criminal proceedings against Alfred John Webb.
Date: 1981-12-17
8 ACCORDING TO THE WORDING OF THE FIRST PARAGRAPH OF ARTICLE 60 OF THE TREATY THE EXPRESSION ' ' SERVICES ' '  MEANS SERVICES WHICH ARE NORMALLY PROVIDED FOR REMUNERATION , IN SO FAR AS THEY ARE NOT GOVERNED BY THE PROVISIONS RELATING TO FREEDOM OF MOVEMENT FOR GOODS , CAPITAL AND PERSONS . IN THE SECOND     PARAGRAPH OF THE ARTICLE EXAMPLES OF ACTIVITIES COVERED BY THE EXPRESSION ' ' SERVICES ' '  ARE LISTED .
9 WHERE AN UNDERTAKING HIRES OUT , FOR REMUNERATION , STAFF WHO REMAIN IN THE EMPLOY OF THAT UNDERTAKING , NO CONTRACT OF EMPLOYMENT BEING ENTERED INTO WITH THE USER , ITS ACTIVITIES CONSTITUTE AN OCCUPATION WHICH SATISFIES THE CONDITIONS LAID DOWN IN THE FIRST PARAGRAPH OF ARTICLE 60 . ACCORDINGLY THEY MUST BE CONSIDERED A ' ' SERVICE ' '  WITHIN THE MEANING OF THAT PROVISION .
10 THE FRENCH GOVERNMENT HAS SOUGHT TO EMPHASIZE IN THIS CONNECTION THE SPECIAL NATURE OF THE ACTIVITY IN QUESTION , WHICH ALTHOUGH COVERED BY THE EXPRESSION ' ' SERVICES ' '  IN ARTICLE 60 OF THE TREATY OUGHT TO RECEIVE SPECIAL CONSIDERATION INASMUCH AS IT MAY BE COVERED AS WELL BOTH BY PROVISIONS CONCERNING SOCIAL POLICY AND BY THOSE CONCERNING THE FREE MOVEMENT OF PERSONS . WHILST EMPLOYEES OF AGENCIES FOR THE SUPPLY OF MANPOWER MAY IN CERTAIN CIRCUMSTANCES BE COVERED BY THE PROVISIONS OF ARTICLES 48 TO 51 OF THE TREATY AND THE COMMUNITY REGULATIONS ADOPTED IN IMPLEMENTATION THEREOF , THAT DOES NOT PREVENT UNDERTAKINGS OF THAT NATURE WHICH EMPLOY SUCH WORKERS FROM BEING UNDERTAKINGS ENGAGED IN THE PROVISION OF SERVICES , WHICH THEREFORE COME WITHIN THE SCOPE OF THE PROVISIONS OF ARTICLE 59 ET SEQ . OF THE TREATY . AS THE COURT HAS ALREADY DECLARED , IN PARTICULAR IN ITS JUDGMENT OF 3 DECEMBER 1974 ( CASE 33/74 VAN BINSBERGEN ( 1974 ) ECR 1299 ), THE SPECIAL NATURE OF CERTAIN SERVICES DOES NOT REMOVE THEM FROM THE AMBIT OF THE RULES ON THE FREEDOM TO SUPPLY SERVICES .
13 THE FIRST PARAGRAPH OF ARTICLE 59 OF THE TREATY REQUIRES RESTRICTIONS ON FREEDOM TO PROVIDE SERVICES WITHIN THE COMMUNITY TO BE PROGRESSIVELY ABOLISHED DURING THE TRANSITIONAL PERIOD IN RESPECT OF NATIONALS OF MEMBER STATES OF THE COMMUNITY . AS STATED BY THE COURT IN ITS JUDGMENT OF 18 JANUARY 1979 ( JOINED CASES 110 AND 111/78 VAN WESEMAEL ( 1979 ) ECR 35 ) THAT PROVISION , INTERPRETED IN THE LIGHT OF ARTICLE 8 ( 7 ) OF THE TREATY , IMPOSES AN OBLIGATION TO OBTAIN A PRECISE RESULT , THE FULFILMENT OF WHICH HAD TO BE MADE EASIER BY , BUT NOT MADE DEPENDENT ON , THE IMPLEMENTATION OF A PROGRAMME OF PROGRESSIVE MEASURES . IT FOLLOWS THAT THE ESSENTIAL REQUIREMENTS OF ARTICLE 59 OF THE TREATY BECAME DIRECTLY AND UNCONDITIONALLY APPLICABLE ON THE EXPIRY OF THAT PERIOD .
14 THOSE ESSENTIAL REQUIREMENTS ABOLISH ALL DISCRIMINATION AGAINST THE PERSON PROVIDING THE SERVICE BY REASON OF HIS NATIONALITY OR THE FACT HE IS ESTABLISHED IN A MEMBER STATE OTHER THAN THAT IN WHICH THE SERVICE IS TO BE PROVIDED .
16 THE PRINCIPAL AIM OF THE THIRD PARAGRAPH IN ARTICLE 60 IS TO ENABLE THE PROVIDER OF THE SERVICE TO PURSUE HIS ACTIVITIES IN THE MEMBER STATE WHERE THE SERVICE IS GIVEN WITHOUT SUFFERING DISCRIMINATION IN FAVOUR OF THE NATIONALS OF THAT STATE . HOWEVER , IT DOES NOT MEAN THAT ALL NATIONAL LEGISLATION APPLICABLE TO NATIONALS OF THAT STATE AND USUALLY APPLIED TO THE PERMANENT ACTIVITIES OF UNDERTAKINGS ESTABLISHED THEREIN MAY BE SIMILARLY APPLIED IN ITS ENTIRETY TO THE TEMPORARY ACTIVITIES OF UNDERTAKINGS WHICH ARE ESTABLISHED IN OTHER MEMBER STATES .
17 IN THE ABOVE-MENTIONED JUDGMENT OF 18 JANUARY 1979 THE COURT HELD THAT , REGARD BEING HAD TO THE PARTICULAR NATURE OF CERTAIN SERVICES , SPECIFIC REQUIREMENTS IMPOSED ON THE PROVIDER OF THE SERVICES CANNOT BE CONSIDERED INCOMPATIBLE WITH THE TREATY WHERE THEY HAVE AS THEIR PURPOSE THE APPLICATION OF RULES GOVERNING SUCH ACTIVITIES . HOWEVER , THE FREEDOM TO PROVIDE SERVICES IS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE TREATY AND MAY BE RESTRICTED ONLY BY PROVISIONS WHICH ARE JUSTIFIED BY THE GENERAL GOOD AND WHICH ARE IMPOSED ON ALL PERSONS OR UNDERTAKINGS OPERATING IN THE SAID STATE IN SO FAR AS THAT INTEREST IS NOT SAFEGUARDED BY THE PROVISIONS TO WHICH THE PROVIDER OF THE SERVICE IS SUBJECT IN THE MEMBER STATE OF HIS ESTABLISHMENT .
18 IT MUST BE NOTED IN THIS RESPECT THAT THE PROVISION OF MANPOWER IS A PARTICULARLY SENSITIVE MATTER FROM THE OCCUPATIONAL AND SOCIAL POINT OF VIEW . OWING TO THE SPECIAL NATURE OF THE EMPLOYMENT RELATIONSHIPS INHERENT IN THAT KIND OF ACTIVITY , PURSUIT OF SUCH A BUSINESS DIRECTLY AFFECTS BOTH RELATIONS ON THE LABOUR MARKET AND THE LAWFUL INTERESTS OF THE WORKFORCE CONCERNED . THAT IS EVIDENT , MOREOVER , IN THE LEGISLATION OF SOME OF THE MEMBER STATES IN THIS MATTER , WHICH IS DESIGNED FIRST TO ELIMINATE POSSIBLE ABUSE AND SECONDLY TO RESTRICT THE SCOPE OF SUCH ACTIVITIES OR EVEN PROHIBIT THEM ALTOGETHER .
19 IT FOLLOWS IN PARTICULAR THAT IT IS PERMISSIBLE FOR MEMBER STATES , AND AMOUNTS FOR THEM TO A LEGITIMATE CHOICE OF POLICY PURSUED IN THE PUBLIC INTEREST , TO SUBJECT THE PROVISION OF MANPOWER WITHIN THEIR BORDERS TO A SYSTEM OF LICENSING IN ORDER TO BE ABLE TO REFUSE LICENCES WHERE THERE IS REASON TO FEAR THAT SUCH ACTIVITIES MAY HARM GOOD RELATIONS ON THE LABOUR MARKET OR THAT THE INTERESTS OF THE WORKFORCE AFFECTED ARE NOT ADEQUATELY SAFEGUARDED . IN VIEW OF THE DIFFERENCES THERE MAY BE IN CONDITIONS ON THE LABOUR MARKET BETWEEN ONE MEMBER STATE AND ANOTHER , ON THE ONE HAND , AND THE DIVERSITY OF THE CRITERIA WHICH MAY BE APPLIED WITH REGARD TO THE PURSUIT OF ACTIVITIES OF THAT NATURE ON THE OTHER HAND , THE MEMBER STATE IN WHICH THE SERVICES ARE TO BE SUPPLIED HAS UNQUESTIONALBY THE RIGHT TO REQUIRE POSSESSION OF A LICENCE ISSUED ON THE SAME CONDITIONS AS IN THE CASE OF ITS OWN NATIONALS .
20 SUCH A MEASURE WOULD BE EXCESSIVE IN RELATION TO THE AIM PURSUED , HOWEVER , IF THE REQUIREMENTS TO WHICH THE ISSUE OF A LICENCE IS SUBJECT COINCIDED WITH THE PROOFS AND GUARANTEES REQUIRED IN THE STATE OF ESTABLISHMENT . IN ORDER TO MAINTAIN THE PRINCIPLE OF FREEDOM TO PROVIDE SERVICES THE FIRST REQUIREMENT IS THAT IN CONSIDERING APPLICATIONS FOR LICENCES AND IN GRANTING THEM THE MEMBER STATE IN WHICH THE SERVICE IS TO BE PROVIDED MAY NOT MAKE ANY DISTINCTION BASED ON THE NATIONALITY OF THE PROVIDER OF THE SERVICES OR THE PLACE OF HIS ESTABLISHMENT ; THE SECOND REQUIREMENT IS THAT IT MUST TAKE INTO ACCOUNT THE EVIDENCE AND GUARANTEES ALREADY FURNISHED BY THE PROVIDER OF THE SERVICES FOR THE PURSUIT OF HIS ACTIVITIES IN THE MEMBER STATE OF HIS ESTABLISHMENT .