Johannes Henricus Maria van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid.
Date: 1974-12-03
11 IN PARTICULAR, A REQUIREMENT THAT THE PERSON PROVIDING THE SERVICE MUST BE HABITUALLY RESIDENT WITHIN THE TERRITORY OF THE STATE WHERE THE SERVICE IS TO BE PROVIDED MAY, ACCORDING TO THE CIRCUMSTANCES, HAVE THE RESULT OF DEPRIVING ARTICLE 59 OF ALL USEFUL EFFECT, IN VIEW OF THE FACT THAT THE PRECISE OBJECT OF THAT ARTICLE IS TO ABOLISH RESTRICTIONS ON FREEDOM TO PROVIDE SERVICES IMPOSED ON PERSONS WHO ARE NOT ESTABLISHED IN THE STATE WHERE THE SERVICE IS TO BE PROVIDED .
12 HOWEVER, TAKING INTO ACCOUNT THE PARTICULAR NATURE OF THE SERVICES TO BE PROVIDED, SPECIFIC REQUIREMENTS IMPOSED ON THE PERSON PROVIDING THE SERVICE CANNOT BE CONSIDERED INCOMPATIBLE WITH THE TREATY WHERE THEY HAVE AS THEIR PURPOSE THE APPLICATION OF PROFESSIONAL RULES JUSTIFIED BY THE GENERAL GOOD - IN PARTICULAR RULES RELATING TO ORGANIZATION, QUALIFICATIONS, PROFESSIONAL ETHICS, SUPERVISION AND LIABILITY - WHICH ARE BINDING UPON ANY PERSON ESTABLISHED IN THE STATE IN WHICH THE SERVICE IS PROVIDED, WHERE THE PERSON PROVIDING THE SERVICE WOULD ESCAPE FROM THE AMBIT OF THOSE RULES BEING ESTABLISHED IN ANOTHER MEMBER STATE .
13 LIKEWISE, A MEMBER STATE CANNOT BE DENIED THE RIGHT TO TAKE MEASURES TO PREVENT THE EXERCISE BY A PERSON PROVIDING SERVICES WHOSE ACTIVITY IS ENTIRELY OR PRINCIPALLY DIRECTED TOWARDS ITS TERRITORY OF THE FREEDOM GUARANTEED BY ARTICLE 59 FOR THE PURPOSE OF AVOIDING THE PROFESSIONAL RULES OF CONDUCT WHICH WOULD BE APPLICABLE TO HIM IF HE WERE ESTABLISHED WITHIN THAT STATE; SUCH A SITUATION MAY BE SUBJECT TO JUDICIAL CONTROL UNDER THE PROVISIONS OF THE CHAPTER RELATING TO THE RIGHT OF ESTABLISHMENT AND NOT OF THAT ON THE PROVISION OF SERVICES .
14 IN ACCORDANCE WITH THESE PRINCIPLES, THE REQUIREMENT THAT PERSONS WHOSE FUNCTIONS ARE TO ASSIST THE ADMINISTRATION OF JUSTICE MUST BE PERMANENTLY ESTABLISHED FOR PROFESSIONAL PURPOSES WITHIN THE JURISDICTION OF CERTAIN COURTS OR TRIBUNALS CANNOT BE CONSIDERED INCOMPATIBLE WITH THE PROVISIONS OF ARTICLES 59 AND 60, WHERE SUCH REQUIREMENT IS OBJECTIVELY JUSTIFIED BY THE NEED TO ENSURE OBSERVANCE OF PROFESSIONAL RULES OF CONDUCT CONNECTED, IN PARTICULAR, WITH THE ADMINISTRATION OF JUSTICE AND WITH RESPECT FOR PROFESSIONAL ETHICS .
24 THE PROVISIONS OF ARTICLE 59, THE APPLICATION OF WHICH WAS TO BE PREPARED BY DIRECTIVES ISSUED DURING THE TRANSITIONAL PERIOD, THEREFORE BECAME UNCONDITIONAL ON THE EXPIRY OF THAT PERIOD .
26 THEREFORE, AS REGARDS AT LEAST THE SPECIFIC REQUIREMENT OF NATIONALITY OR OF RESIDENCE, ARTICLES 59 AND 60 IMPOSE A WELL-DEFINED OBLIGATION, THE FULFILMENT OF WHICH BY THE MEMBER STATES CANNOT BE DELAYED OR JEOPARDIZED BY THE ABSENCE OF PROVISIONS WHICH WERE TO BE ADOPTED IN PURSUANCE OF POWERS CONFERRED UNDER ARTICLES 63 AND 66 .
27 ACCORDINGLY, THE REPLY SHOULD BE THAT THE FIRST PARAGRAPH OF ARTICLE 59 AND THE THIRD PARAGRAPH OF ARTICLE 60 HAVE DIRECT EFFECT AND MAY THEREFORE BE RELIED ON BEFORE NATIONAL COURTS, AT LEAST IN SO FAR AS THEY SEEK TO ABOLISH ANY DISCRIMINATION AGAINST A PERSON PROVIDING A SERVICE BY REASON OF HIS NATIONALITY OR OF THE FACT THAT HE RESIDES IN A MEMBER STATE OTHER THAN THAT IN WHICH THE SERVICE IS TO BE PROVIDED .