Criminal proceedings against Marcel Burmanjer, René Alexander Van Der Linden and Anthony De Jong.
Date: 2005-05-26
19. According to settled case-law, the essential feature of an employment relationship resides in the fact that for a certain period of time a person performs services for and under the direction of another person, in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie-Blum  [1986] ECR 2121, paragraphs 16 and 17; Case C-85/96 Martínez Sala  [1998] ECR I-2691, paragraph 32, and Case C-43/99 Leclere and Deaconescu [2001] ECR I-4265, paragraph 55). It is common ground that, in the main proceedings, there was no employment relationship, within the meaning of that case-law, between the defendants and Alpina.
22. In such circumstances, the national rules on itinerant sales relate to the free movement of goods. In that regard, the Court has already had occasion to rule on the compatibility with Articles 28 EC to 30 EC of various national provisions regulating marketing methods (see, in particular, Case 382/87 Buet and EBS [1989] ECR 1235, paragraphs 7 to 9; Case C-239/90 Boscher  [1991] ECR I‑2023, paragraphs 13 to 21; Case C-254/98 TK-Heimdienst  [2000] ECR I‑151, paragraphs 29 to 31, and Case C-71/02 Karner [2004] ECR I-3025, paragraph 39).
23. To establish whether those rules come within the prohibition laid down by Article 28 EC, it is appropriate to note that, under settled case-law, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent to quantitative restrictions and thus prohibited by that article (see, in particular, Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Case C-420/01 Commission v Italy [2003] ECR I-6445, paragraph 25, and Karner , paragraph 36).
24. The Court however stated, in paragraph 16 of Keck and Mithouard , cited above, that national provisions restricting or prohibiting certain selling arrangements which apply to all relevant traders operating within the national territory and affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States are not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the line of case-law initiated by Dassonville .
25. The Court subsequently found that provisions concerning, in particular, certain marketing methods were selling arrangements within the meaning of Keck and Mithouard  (see, in particular, Case C-292/92 Hünermund and Others [1993] ECR I-6787, paragraphs 21 and 22; Joined Cases C-401/92 and C‑402/92 Tankstation ’t Heukske and Boermans [1994] ECR I-2199, paragraphs 12 to 14, and TK-Heimdienst , paragraph 24).
26. As is clear from paragraph 21 of this judgment, the national rules on itinerant sales relate to a marketing method. It is common ground that it is not intended to regulate trade in goods between the Member States. However, it can escape the prohibition under Article 28 EC only if it satisfies the two conditions noted in paragraph 24 above.
33. Thirdly, as regards the application of Article 49 EC, it should be recalled, as is already clear from paragraph 21 above, that the national rules on itinerant sales concern the conditions laid down for the marketing of a certain type of goods. According to the Court’s case-law, such rules are, in principle, subject to the provisions of the Treaty governing the free movement of goods and not to those relating to the freedom to provide services (see, to that effect, Boscher , paragraphs 8 to 10).
34. It cannot however be excluded that the sale of a product may be accompanied by an activity with ‘services’ aspects. None the less, that fact cannot be sufficient, by itself, to classify an economic operation such as the itinerant sales at issue in the main proceedings as a ‘provision of services’ within the meaning of Article 49 EC. It must be established, in each case, whether that service is or is not wholly secondary in relation to the elements concerning the free movement of goods. In the circumstances of the main proceedings, it appears that the latter aspect prevails over that of the freedom to provide services.
35. In that regard, it is settled case-law that, where a national measure relates to both the free movement of goods and freedom to provide services, the Court will in principle examine it in relation to one only of those two fundamental freedoms if it appears that one of them is entirely secondary in relation to the other and may be considered together with it (see, to that effect, Case C-275/92 Schindler [1994] ECR I-1039, paragraph 22; Case C-390/99 Canal Satélite Digital  [2002] ECR I‑607, paragraph 31, and Karner , paragraph 46).