Katoen Natie Bulk Terminals NV and General Services Antwerp NV v Belgische Staat and Middlegate Europe NV v Ministerraad.
Date: 2021-02-11
Furthermore, in so far as, in their request for reopening of the oral procedure, Katoen Natie Bulk Terminals, General Services Antwerp and Middlegate Europe express their disagreement with certain findings set out in the Advocate General’s Opinion, it should be recalled, first, that the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Court make no provision for interested parties to submit observations in response to the Advocate General’s Opinion (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30 and the case-law cited).
Second, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. In this regard, the Court is not bound either by the conclusion reached by the Advocate General or by the reasoning which led to that conclusion. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he or she examines in his or her Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 4 September 2014, Vnuk, C‑162/13, EU:C:2014:2146, paragraph 31 and the case-law cited).
In that regard, on the one hand, it is for the referring court to indicate to the Court in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law on the fundamental freedoms that makes the preliminary ruling on interpretation necessary for it to give judgment in the dispute in the main proceedings (judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 55). As is apparent from paragraphs 18 to 20 of the present judgment, in Case C‑407/19, the Raad van State (Council of State) took care to explain how the international orientation of the port areas situated in Belgium suggests that the situations concerned by the applicable national legislation have such a connecting factor with EU law. Those considerations appear to be fully applicable to the dispute before the Grondwettelijk Hof (Constitutional Court) in Case C‑471/19.
On the other hand, where the referring court requests a preliminary ruling from the Court in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, the decision of the referring court that will be adopted following the Court’s preliminary ruling will also have effects on the nationals of other Member States, which justifies the Court giving an answer to the questions put to it in relation to the provisions of the Treaty on the fundamental freedoms, even though the dispute in the main proceedings is confined in all respects within a single Member State (judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 51 and the case-law cited). That consideration also applies where a matter has been referred to the Court in proceedings concerning the conformity of such national provisions with EU law. The national provisions at issue in the cases in the main proceedings are applicable without distinction both to Belgian nationals and to nationals of other Member States.
It should be stated at the outset that, so far as concerns the compatibility with Articles 15 and 16 of the Charter of national legislation by virtue of which undertakings wishing to provide port services must obligatorily have recourse to recognised dockers, examination of the restriction brought about by national legislation from the point of view of Articles 49 and 56 TFEU also covers possible limitations of the exercise of the rights and freedoms laid down in Articles 15 to 17 of the Charter, so that a separate examination from the point of view of possible incompatibility with the freedom to conduct a business is not necessary (see, to that effect, judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 50 and the case-law cited).
However, it follows from the Court’s settled case-law that Articles 49 and 56 TFEU preclude any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to prohibit, impede or render less attractive the exercise by nationals of the European Union of the freedom of establishment and the freedom to provide services guaranteed by those provisions of the Treaty (judgment of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 28 and the case-law cited).
It therefore constitutes a restriction on the freedoms guaranteed by Articles 49 and 56 TFEU (see, by analogy, judgment of 11 December 2014, Commission v Spain, C‑576/13, not published, EU:C:2014:2430, paragraphs 37 and 38).
Such restrictions can be justified by overriding reasons in the public interest, provided that they are suitable for securing the attainment of the objective pursued and do not go beyond what is necessary in order to attain it, that is to say, if there are no less restrictive measures which would enable the objective to be attained just as effectively (see, to that effect, judgments of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union, C‑438/05, EU:C:2007:772, paragraph 75; of 10 July 2014, Consorzio Stabile Libor Lavori Pubblici, C‑358/12, EU:C:2014:2063, paragraph 31; and of 11 December 2014, Commission v Spain, C‑576/13, not published, EU:C:2014:2430, paragraphs 47 and 53).
First, regarding the objective of guaranteeing equal treatment in social rights for all dockers, it is appropriate to recall that the protection of workers constitutes an overriding reason in the public interest capable of justifying a restriction on the freedoms of movement (see, inter alia, judgments of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union, C‑438/05, EU:C:2007:772, paragraph 77, and of 11 December 2014, Commission v Spain, C‑576/13, not published, EU:C:2014:2430, paragraph 50).
The same is true of the more specific objective of ensuring safety in port areas (see, to that effect, judgment of 11 December 2014, Commission v Spain, C‑576/13, not published, EU:C:2014:2430, paragraphs 49 to 52).
National legislation under which undertakings wishing to provide port services must obligatorily have recourse to recognised dockers cannot be regarded as proportionate to the aim pursued unless the recognition of dockers was based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the discretion of the authority responsible for recognising them and to ensure that it is not used arbitrarily (see, by analogy, judgment of 17 July 2008, Commission v France, C‑389/05, EU:C:2008:411, paragraph 94 and the case-law cited).
However, requiring such training to be provided or certified by one particular body in the Member State concerned, without taking into account any recognition of the workers concerned as dockers in another Member State of the European Union, or of the training which they have followed in another Member State and the professional skills which they have acquired there, is disproportionate to the aim pursued (see, to that effect, judgment of 5 February 2015, Commission v Belgium, C‑317/14, EU:C:2015:63, paragraphs 27 to 29).
In the second place, it should be specified that such legislation also falls within the scope of Article 45 TFEU. After all, that provision may be relied on not only by the workers themselves, but also by their employers. In order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers (judgment of 16 April 2013, Las, C‑202/11, EU:C:2013:239, paragraph 18). The provisions laid down in the FEU Treaty relating to freedom of movement for persons are intended to facilitate the pursuit by nationals of Member States of occupational activities of all kinds throughout the European Union, and preclude measures which might place those nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State. Those provisions and, in particular, Article 45 TFEU thus preclude any national measure which, even though applicable without discrimination on grounds of nationality, is capable of hindering or rendering less attractive the exercise by Union nationals of the fundamental freedoms guaranteed by the Treaty (judgment of 16 April 2013, Las, EU:C:2013:239, paragraphs 19 and 20 and the case-law cited).
In any event, it should be recalled that, where a national measure affects both the freedom to provide services and the free movement of goods, the Court will, in principle, examine it in relation to just one of those two fundamental freedoms if it is clear that, in the circumstances of the case, one of those freedoms is entirely secondary in relation to the other and may be attached to it (judgment of 14 October 2004, Omega, C‑36/02, EU:C:2004:614, paragraph 26 and the case-law cited).
Moreover, as the Advocate General observed in point 38 of his Opinion, the Court has already held that legislation, such as that at issue in the main proceedings, which requires individuals to engage, for the performance of dock work, only recognised dockers, does not fall within the scope of Articles 101, 102 and 106(1) TFEU, in so far as, even taken collectively, dockers cannot be regarded as ‘undertakings’ within the meaning of those provisions (see, to that effect, judgment of 16 September 1999, Becu and Others, C‑22/98, EU:C:1999:419, paragraphs 27, 30 and 31).
Similarly, such national legislation is liable to have a dissuasive effect on workers and employers from other Member States and therefore constitutes a restriction on freedom of movement for workers, enshrined in Article 45 TFEU (see, by analogy, judgment of 16 April 2013, Las, C‑202/11, EU:C:2013:239, paragraph 22).
In addition, as the Advocate General observed in points 126 to 128 of his Opinion, although the members of the body competent to recognise dockers are designated by operators already present on the market, inter alia by an organisation representing already-recognised dockers who might compete for available workstations with workers who are applying for recognition, it is permissible to question the impartiality of those members and whether they will be able, therefore, to rule on the applications for recognition in an objective, transparent and non-discriminatory manner (see, by analogy, judgments of 15 January 2002, Commission v Italy, C‑439/99,  EU:C:2002:14, paragraph 39; of 1 July 2008, MOTOE, C‑49/07, EU:C:2008:376, paragraph 51; and of 26 September 2013, Ottica New Line, C‑539/11, EU:C:2013:591, paragraphs 53 and 54).
Third, as regards the fact that, according to the information provided by the referring court in Case C‑407/19, only judicial review is provided for against decisions of the committee responsible for recognising dockers, it should be noted that, in order to be deemed proportionate to the objective pursued, a measure involving the restriction of a fundamental freedom must be amenable to effective judicial review, guaranteed by Article 47 of the Charter (see, to that effect, judgment of 8 May 2019, PI, C‑230/18, EU:C:2019:383, paragraphs 78 to 81).
It is important to note from the outset that the fact that such  conditions and arrangements are laid down by a CLA does not have the effect of excluding them from the scope of those articles (see, to that effect, judgment of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union, C‑438/05, EU:C:2007:772, paragraphs 33 and 34).