Jean Reyners v Belgian State.
Date: 1974-06-21
15 ARTICLE 7 OF THE TREATY, WHICH FORMS PART OF THE 'PRINCIPLES' OF THE COMMUNITY, PROVIDES THAT WITHIN THE SCOPE OF APPLICATION OF THE TREATY AND WITHOUT PREJUDICE TO ANY SPECIAL PROVISIONS CONTAINED THEREIN, 'ANY DISCRIMINATION ON GROUNDS OF NATIONALITY SHALL BE PROHIBITED '.
16 ARTICLE 52 PROVIDES FOR THE IMPLEMENTATION OF THIS GENERAL PROVISION IN THE SPECIAL SPHERE OF THE RIGHT OF ESTABLISHMENT .
21 IT APPEARS FROM THE ABOVE THAT IN THE SYSTEM OF THE CHAPTER ON THE RIGHT OF ESTABLISHMENT THE 'GENERAL PROGRAMME' AND THE DIRECTIVES PROVIDED FOR BY THE TREATY ARE INTENDED TO ACCOMPLISH TWO FUNCTIONS, THE FIRST BEING TO ELIMINATE OBSTACLES IN THE WAY OF ATTAINING FREEDOM OF ESTABLISHMENT DURING THE TRANSITIONAL PERIOD, THE SECOND BEING TO INTRODUCE INTO THE LAW OF MEMBER STATES A SET OF PROVISIONS INTENDED TO FACILITATE THE EFFECTIVE EXERCISE OF THIS FREEDOM FOR THE PURPOSE OF ASSISTING ECONOMIC AND SOCIAL INTERPENETRATION WITHIN THE COMMUNITY IN THE SPHERE OF ACTIVITIES AS SELF-EMPLOYED PERSONS .
24 THE RULE ON EQUAL TREATMENT WITH NATIONALS IS ONE OF THE FUNDAMENTAL LEGAL PROVISIONS OF THE COMMUNITY .
25 AS A REFERENCE TO A SET OF LEGISLATIVE PROVISIONS EFFECTIVELY APPLIED BY THE COUNTRY OF ESTABLISHMENT TO ITS OWN NATIONALS, THIS RULE IS, BY ITS ESSENCE, CAPABLE OF BEING DIRECTLY INVOKED BY NATIONALS OF ALL THE OTHER MEMBER STATES .
26 IN LAYING DOWN THAT FREEDOM OF ESTABLISHMENT SHALL BE ATTAINED AT THE END OF THE TRANSITIONAL PERIOD, ARTICLE 52 THUS IMPOSES AN OBLIGATION TO ATTAIN 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 .
29 IT IS NOT POSSIBLE TO INVOKE AGAINST SUCH AN EFFECT THE FACT THAT THE COUNCIL HAS FAILED TO ISSUE THE DIRECTIVES PROVIDED FOR BY ARTICLES 54 AND 57 OR THE FACT THAT CERTAIN OF THE DIRECTIVES ACTUALLY ISSUED HAVE NOT FULLY ATTAINED THE OBJECTIVE OF NON-DISCRIMINATION REQUIRED BY ARTICLE 52 .
43 HAVING REGARD TO THE FUNDAMENTAL CHARACTER OF FREEDOM OF ESTABLISHMENT AND THE RULE ON EQUAL TREATMENT WITH NATIONALS IN THE SYSTEM OF THE TREATY, THE EXCEPTIONS ALLOWED BY THE FIRST PARAGRAPH OF ARTICLE 55 CANNOT BE GIVEN A SCOPE WHICH WOULD EXCEED THE OBJECTIVE FOR WHICH THIS EXEMPTION CLAUSE WAS INSERTED .
44 THE FIRST PARAGRAPH OF ARTICLE 55 MUST ENABLE MEMBER STATES TO EXCLUDE NON-NATIONALS FROM TAKING UP FUNCTIONS INVOLVING THE EXERCISE OF OFFICIAL AUTHORITY WHICH ARE CONNECTED WITH ONE OF THE ACTIVITIES OF SELF-EMPLOYED PERSONS PROVIDED FOR IN ARTICLE 52 .
45 THIS NEED IS FULLY SATISFIED WHEN THE EXCLUSION OF NATIONALS IS LIMITED TO THOSE ACTIVITIES WHICH, TAKEN ON THEIR OWN, CONSTITUTE A DIRECT AND SPECIFIC CONNEXION WITH THE EXERCISE OF OFFICIAL AUTHORITY .
46 AN EXTENSION OF THE EXCEPTION ALLOWED BY ARTICLE 55 TO A WHOLE PROFESSION WOULD BE POSSIBLE ONLY IN CASES WHERE SUCH ACTIVITIES WERE LINKED WITH THAT PROFESSION IN SUCH A WAY THAT FREEDOM OF ESTABLISHMENT WOULD RESULT IN IMPOSING ON THE MEMBER STATE CONCERNED THE OBLIGATION TO ALLOW THE EXERCISE, EVEN OCCASIONALLY, BY NON-NATIONALS OF FUNCTIONS APPERTAINING TO OFFICIAL AUTHORITY .
47 THIS EXTENSION IS ON THE OTHER HAND NOT POSSIBLE WHEN, WITHIN THE FRAMEWORK OF AN INDEPENDENT PROFESSION, THE ACTIVITIES CONNECTED WITH THE EXERCISE OF OFFICIAL AUTHORITY ARE SEPARABLE FROM THE PROFESSIONAL ACTIVITY IN QUESTION TAKEN AS A WHOLE .
48 IN THE ABSENCE OF ANY DIRECTIVE ISSUED UNDER ARTICLE 57 FOR THE PURPOSE OF HARMONIZING THE NATIONAL PROVISIONS RELATING, IN PARTICULAR, TO PROFESSIONS SUCH AS THAT OF AVOCAT, THE PRACTICE OF SUCH PROFESSIONS REMAINS GOVERNED BY THE LAW OF THE VARIOUS MEMBER STATES .
49 THE POSSIBLE APPLICATION OF THE RESTRICTIONS ON FREEDOM OF ESTABLISHMENT PROVIDED FOR BY THE FIRST PARAGRAPH OF ARTICLE 55 MUST THEREFORE BE CONSIDERED SEPARATELY IN CONNEXION WITH EACH MEMBER STATE HAVING REGARD TO THE NATIONAL PROVISIONS APPLICABLE TO THE ORGANIZATION AND THE PRACTICE OF THIS PROFESSION .
50 THIS CONSIDERATION MUST HOWEVER TAKE INTO ACCOUNT THE COMMUNITY CHARACTER OF THE LIMITS IMPOSED BY ARTICLE 55 ON THE EXCEPTIONS PERMITTED TO THE PRINCIPLE OF FREEDOM OF ESTABLISHMENT IN ORDER TO AVOID THE EFFECTIVENESS OF THE TREATY BEING DEFEATED BY UNILATERAL PROVISIONS OF MEMBER STATES .
51 PROFESSIONAL ACTIVITIES INVOLVING CONTACTS, EVEN REGULAR AND ORGANIC, WITH THE COURTS, INCLUDING EVEN COMPULSORY COOPERATION IN THEIR FUNCTIONING, DO NOT CONSTITUTE, AS SUCH, CONNEXION WITH THE EXERCISE OF OFFICIAL AUTHORITY .
52 THE MOST TYPICAL ACTIVITIES OF THE PROFESSION OF AVOCAT, IN PARTICULAR, SUCH AS CONSULTATION AND LEGAL ASSISTANCE AND ALSO REPRESENTATION AND THE DEFENCE OF PARTIES IN COURT, EVEN WHEN THE INTERVENTION OR ASSISTANCE OF THE AVOCAT IS COMPULSORY OR IS A LEGAL MONOPOLY, CANNOT BE CONSIDERED AS CONNECTED WITH THE EXERCISE OF OFFICIAL AUTHORITY .
53 THE EXERCISE OF THESE ACTIVITIES LEAVES THE DISCRETION OF JUDICIAL AUTHORITY AND THE FREE EXERCISE OF JUDICIAL POWER INTACT .
54 IT IS THEREFORE RIGHT TO REPLY TO THE QUESTION RAISED THAT THE EXCEPTION TO FREEDOM OF ESTABLISHMENT PROVIDED FOR BY THE FIRST PARAGRAPH OF ARTICLE 55 MUST BE RESTRICTED TO THOSE OF THE ACTIVITIES REFERRED TO IN ARTICLE 52 WHICH IN THEMSELVES INVOLVE A DIRECT AND SPECIFIC CONNEXION WITH THE EXERCISE OF OFFICIAL AUTHORITY .
55 IN ANY CASE IT IS NOT POSSIBLE TO GIVE THIS DESCRIPTION, IN THE CONTEXT OF A PROFESSION SUCH AS THAT OF AVOCAT, TO ACTIVITIES SUCH AS CONSULTATION AND LEGAL ASSISTANCE OR THE REPRESENTATION AND DEFENCE OF PARTIES IN COURT, EVEN IF THE PERFORMANCE OF THESE ACTIVITIES IS COMPULSORY OR THERE IS A LEGAL MONOPOLY IN RESPECT OF IT .