Commission of the European Communities v French Republic.
Date: 2006-06-15
24. By virtue of Article 21 of the Statute of the Court of Justice and Article 38(1)(c) of the Rules of Procedure, the Commission must, in the heads of claim in an application made under Article 226 EC, indicate the specific complaints on which the Court is asked to rule (see, to that effect Case C-347/88 Commission v Greece  [1990] ECR I-4747, paragraph 28, and Case C-52/90 Commission v Denmark  [1992] ECR I-2187, paragraph 17). Those heads of claim must be set out unambiguously so that the Court does not rule ultra petita  or indeed fail to rule on a complaint (see, to that effect, Joined Cases 46/59 and 47/59 Meroni v High Authority [1962] ECR 411, 419, and Case C-296/01 Commission v France  [2003] ECR I-13909, paragraph 121).
29. In that regard, it is sufficient to find that, as the French Government has, moreover, acknowledged, national legislation which makes the grant of a licence to pursue an activity such as the engagement of performing artists subject to the need to engage performing artists constitutes a restriction in that it tends to limit the number of suppliers of services. The French Government has not given any reason whatsoever that could justify that restriction.
37. It is settled case-law that Article 49 EC requires not only the elimination of all discrimination against service providers from other Member States, but also the abolition of any restriction on the freedom to provide services, even if that restriction applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of service providers from other Member States who lawfully provide similar services in their Member State of origin (see, to that effect, Case C-76/90 Säger  [1991] ECR I-4221, paragraph 12, and Joined Cases C‑49/98, C-50/98, C-52/98 to C-54/98 and C-68/98 to C-71/98 Finalarte and Others  [2001] ECR I-7831, paragraph 28). That freedom is enjoyed by both providers and recipients of services (see Joined Cases 286/82 and 26/83 Luisi and Carbone  [1984] ECR 377, paragraph 16, and Case C-262/02 Commission  v France  [2004] ECR I-6569, paragraph 22).
40. Whilst, as with any presumption, the presumption of salaried status at issue constitutes a procedural measure, it is clear that the case-law to which the French Government refers does not apply automatically to all national measures of a procedural nature but is concerned only with the detailed procedural rules governing actions at law intended to safeguard the rights which individuals derive from the direct effect of Community law (see, in particular, Case C-312/93 Peterbroeck  [1995] ECR I-4599, paragraph 12). The presumption of salaried status at issue in the present case does not serve to guarantee rights derived from Community law but, on the contrary, to place a restriction on such rights.
43. The freedom to provide services may, however, be restricted by national regulations justified on the grounds set out in Article 46(1) EC in conjunction with Article 55 EC or by overriding reasons in the public interest (see, to that effect, Case C‑262/02 Commission  v France , paragraph 23), to the extent that there are no Community harmonising measures providing for measures necessary to ensure those interests are protected (see, to that effect, in the context of the free movement of goods, Case C-323/93 Centre d’insémination de la Crespelle  [1994] ECR I-5077, paragraph 31 and case-law cited).
44. As a rule, it is for the Member States to decide on the degree of protection which they wish to afford to such lawful interests and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, observe the principle of proportionality, which requires that the measures adopted be appropriate to secure the attainment of the objective they pursue and not go beyond what is necessary in order to attain it (see, in particular, Säger,  paragraph 15, and Case C‑262/02 Commission  v France , paragraph 24).
52. With regard, secondly, to the objective of combating concealed employment, the fact that performing artists are normally engaged on an intermittent basis and for short periods by different show organisers cannot, of itself, mean that a general assumption of concealed employment is well founded. That is particularly so in this case because the performing artists in question are recognised as service providers, established in their Member State of origin, where they usually provide similar services.