Rico Graf and Rudolf Engel v Landratsamt Waldshut.
Date: 2011-10-06
23. It should further be noted that it is apparent from the case-law that the principle of equal treatment, laid down in Article 15(1) of Annex I to the Agreement, concerning access to a self-employed activity and the pursuit thereof, is valid not only for ‘self-employed persons’, within the meaning of Article 12(1) of that Annex, but also for ‘self-employed frontier workers’, within the meaning of Article 13(1) of that Annex, such as the self-employed Swiss border farmers (see judgment in Case C-13/08 Stamm and Hauser [2008] ECR I‑11087, paragraphs 47 to 49 and the operative part of the judgment).
26. However, according to the Court’s settled case-law, the principle of equal treatment, which is a concept of European Union law, prohibits not only overt discrimination, based on nationality, but also all covert forms of discrimination which, through application of other criteria of differentiation, lead in fact to the same result (see, by way of example, Case C‑278/94 Commission  v Belgium  [1996] ECR I‑4307, paragraph 27 and the case-law cited). That case-law, which was already in existence at the date of the signature of the Agreement, is also valid with regard to the application of that Agreement, in accordance with Article 16(2) thereof.
27. As regards the question whether the conditions laid down in the legislation at issue in the main proceedings for the purpose of the prohibition of an agricultural lease do, as a matter of fact, involve indirect discrimination, it is enough to hold that, in so far as the number of frontier workers established in Switzerland and working agricultural land in Germany comprise distinctly more persons of Swiss nationality than of German nationality, such indirect discrimination does exist (see, to that effect, Case C‑107/94 Asscher  [1996] ECR I‑3089, paragraphs 37 and 38).
32. Under that provision, ‘public order’ constitutes a reason which may limit the rights granted under the Agreement. If, for the most part, the contracting States remain free to determine, in accordance with their national needs which may vary from one State to another and from one era to another, the requirements of public policy and public order, their scope cannot be determined unilaterally by each Member State without any control by the Court (see, to this effect, Case C‑33/07 Jipa  [2008] ECR I‑5157, paragraph 23 and the case-law cited). In the light of that finding, the concept of ‘public order’ should be contemplated and interpreted in the context of the Agreement and in conformity with the objectives pursued by that Agreement.
33. It is important to note that the Agreement falls within the more general context of relations between the European Union and the Swiss Confederation, which, although it did not opt to participate either in the European Economic Area or in the Union’s internal market, is nevertheless linked to the Union by numerous agreements covering a wide range of areas and prescribing rights and specific obligations, analogous, in some respects, to those laid down by the Treaty. The general objective of these agreements, including the Agreement at issue in the main proceedings, is to strengthen the economic ties between the European Union and the Swiss Confederation. Therefore, the reasons, exhaustively listed in Article 5(1) of Annex I to the Agreement, as justifications for derogation from the fundamental rules of the latter such as the principle of equal treatment, must be interpreted strictly.