judgment of 3. 12. 1974 — case 33/74

established in the State in which theservice is provided, where the personproviding the service would escapefrom the ambit of those rules bybeing established in another MemberState.

Likewise, a Member State cannot bedenied the right to take measures toprevent the exercise by a personproviding services whose activity isentirely or principally directedtowards its territory of the freedomguaranteed by Article 59 for thepurpose of avoiding the professionalrules of conduct which would be

applicable to him if he were estab­lished within that State.

Accordingly the requirement thatpersons whose functions are to assistthe administration of justice must bepermanently established for pro­fessional purposes within the jurisdic­tion of certain courts or tribunalscannot be considered incompatiblewith the provisions of Articles 59 and60, where such requirement is objec­tively justified by the need to ensureobservance of professional rules ofconduct connected, in particular, withthe administration of justice and withrespect for professional ethics.

In Case 33/74

Reference to the Court under Article 177 of the EEC Treaty by the CentraleRaad van Beroep (Netherlands court of last instance in social securitymatters) for a preliminary ruling in the action pending before that courtbetween

Johannes HENRICUS MARIA VAN BINSBENGEN, fitter, residing at Beesel(Netherlands),

and

BESTUUR van DE BEDRIJFSVERENIGING VOOR de METAALNIJVERHEID, (Board ofthe Trade Association of the Engineering Industry), registered at The Hague,

on the interpretation of Articles 59 and 60 of the EEC Treaty relating tofreedom to provide services within the Community,

THE COURT

composed of: R. Lecourt, President, C. Ó Dálaigh and Lord Mackenzie Stuart(Presidents of Chambers), A. M. Dormer, R. Monaco, J. Mertens de Wilmars,P. Pescatore (Rapporteur), H. Kutscher and M. Sørensen, Judges,

Advocate-General: H. Mayras,Registrar: A. Van Houtte,

gives the following

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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

JUDGMENT

Facts

The facts of the case, the course of theprocedure and the observations sub­mitted under Article 20 of the Protocolon the Statute of the Court of Justice ofthe EEC may be summarized as follows:

I — Facts and procedure

By judgment of 24 April 1972, the Raadvan Beroep (court of first instance insocial security matters) of Roermonddismissed an action brought by J. H. M.van Binsbergen against the Board of theBedrijfsvereniging voor de Metaalnijver­heid (Trade Association of the Engin­eering Industry) concerning the applica­tion of the Law on Unemployment(Werkloosheidswet).By power of attorney dated 5 July 1972,van Binsbergen authorized M. G. J.M. Kortmann, a Netherlands nationalestablished in the Netherlands, to bring,on his behalf, an appeal against thisdecision before the Centrale Raad van

Beroep (court of last instance in socialsecurity matters) and to represent him inthe proceedings before that court.On 30 November 1973, the AssistantRegistrar of the Centrale Raad van Be­roep informed Mr Kortmann that he wasno longer entitled to act as Mr van Bins­bergen's representative ad litem oradviser. Article 48 (1) of the Beroepswet(Law of 2 February 1955 on the organ­ization and rules of procedure of Nether­lands social service courts) provides thatonly persons established in the Nether­lands can act as legal representatives oradvisers; during the course of the pro­ceedings Mr Kortmann had transferred

his habitual residence from Zeist, in theNetherlands, to Neeroeteren, in Belgium.Before the Centrale Raad van Beroep,Mr Kortmann invoked Article 59 of the

EEC Treaty providing for the pro­gressive abolition, during the transitionalperiod, of restrictions on freedom toprovide services within the Communityand claimed that this provision preventsthe application of Article 48 of theBeroepswet.

By order of 18 April 1974 the CentraleRaad van Beroep decided, in accordancewith Article 177 of the EEC Treaty, tostay the proceedings until the Court ofJustice had given a preliminary ruling onthe following questions:1. Are Articles 59 and 60 of the EEC

Treaty directly applicable and do theycreate individual rights which thenational courts must protect?

2. If the answer to the first question isaffirmative, what is the meaning ofthese Articles, particularly the finalsentence of Article 60?

The order of the Centrale Raad vanBeroep was lodged at the Registry of theCourt on 15 May 1974.In accordance with Article 20 of theProtocol on the Statute of the Court ofJustice of the EEC, written observationswere submitted on 15 July 1974 by theCommission of the European Communi­ties, on 31 July by the Government ofIreland and on 6 August by the Govern­ment of the United Kingdom of GreatBritain and Northern Ireland.

The Court, having heard the report ofthe Judge-Rapporteur and the views ofthe Advocate-General, decided to open

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JUDGMENT OF 3. 12. 1974 — CASE 33/74

the oral procedure without any prelimi­nary inquiry.

The appellant in the main action, theGovernment of the Federal Republic ofGermany and the Commission presentedtheir oral observations and replied toquestions put by the Court at the hear­ing on 9 October 1974.

The Advocate-General delivered his

opinion on 30 October 1974.

In the procedure before the Court, theappellant in the main action was rep­resented by M. G. J. M. Kortmann, theGovernment of Ireland by Liam J.Lysaght, Chief State Solicitor, theGovernment of the United Kingdom byW. H. Godwin, the Government of theFederal Republic by Erich Bülow, Mini­sterialdirigent at the Federal Ministry ofJustice and the Commission by its LegalAdviser, Jacques H. J. Bourgeois.

II — Observations submit­ted to the Court

A — The first question

The appellant in the main action con­siders that the principles deduced fromArticle 52 of the EEC Treaty by theCourt of Justice (Judgment of 21 June1974 in Case 2/74, Reyners) also applyto Article 59. This article imposes, in thefield of freedom to provide services, awell — defined obligation, the fulfilmentof which was to facilitated by, but notconditional upon, the implementation ofa programme of progressive measures.Articles 64 and 65 have lost their realsignificance since the end of the tran­sitional period; Article 65, however,prohibits restrictions on freedom toprovide services involving discriminationbased on residence. Provisions which,like Articles 59 and 60 of the EECTreaty, impose on Member States anobligation which they must dischargewithin a specific period of time becomedirectly applicable when, on expiry of

this time limit, the obligation has notbeen fulfilled.

The Government of Ireland submits thatArticles 59 and 60 of the EEC Treatyshould not be regarded as having directeffect, even though the transitionalperiod has expired, save to the extent towhich express provision is made for sucha direct effect in the subsequent pro­visions of the chapter relating to freedomto provide services. This is theconclusion to be drawn in particularfrom Articles 64 and 65 of the Treatywhich contain provisions which are notto be found in the chapter concerningthe right of establishment.

(a) In Article 64, the Member Statesdeclared their readiness to undertake theliberalization of services beyond theextent required by directives issuedpursuant to Article 63 (2), if theirgeneral economic situation and thesituation of the economic sector con­

cerned so permit. They thereforeregarded the liberalization of services asrequiring a detailed and careful processof analysis and consideration from theviewpoint of economic policy in eachMember State and felt that, subject toArticle 65, this object of the Communityis to be achieved only within the limitsof the directives of the Council underArticle 63, and such action as may betaken by Member States under Article64.

(b) Article 65 of the Treaty providesthat as long as restrictions on freedom toprovide services have not been abolished,each Member State shall apply suchrestrictions without distinction ongrounds of nationality or residence. Thisarticle might be construed as requiringthat, as long as restrictions on freedomto provide services have not been abol­ished, the restrictions imposed by eachMember State on the free provision ofservices within its territory must notdistinguish between the nationals of thevarious other Member States, butwithout imposing on each Member Statean obligation to accord to the nationalsof other Member States the same treat­

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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

ment as that which it gives to its ownnationals. However this may be, Article65 sets the limit to the extent to whichArticles 59 and 60 may be held to bedirectly applicable. The principles con­tained in the Judgment of the Court of21 June 1974 in Case 2/74 (Reyners vThe Belgian State), concerning freedomof establishment should not be appliedto the chapter concerning the free pro­vision of services.

(c) In any case, Articles 59 and 60should only be held to be directlyapplicable in so far as they prohibitrestrictions which discriminate betweenpersons on grounds of nationality, andalso possibly of residence. The removalof other restrictions on freedom toprovide services necessitates the resol­ution of problems which arise (inter alia)from the different laws and regulationswhich are applicable, from the differentconditions in which services are renderedin the various Member States and fromthe fact that Member States require dif­ferent educational and professionalqualifications, in particular the body ofknowledge required for the practice ofthe legal profession and the systemswithin which such practice is in factconducted. These and other difficultiescan only be resolved by means ofdirectives of the Council under Article 63(2) of the Treaty.

The Government of the United Kingdomemphasizes that there are many points ofsimilarity between the chapters of theEEC Treaty dealing respectively with theright of establishment and the freedomto provide services. Following its reason­ing in the Reyners Judgment, the Courtmay therefore hold that, since the end ofthe transitional period, Articles 59 and60 have been directly applicable notwith­standing that the directives provided forin Articles 63 (2) and 57 (1) may nothave been issued in respect of a givenfield. These directives were intended to

fulfil two functions: the first being toeliminate obstacles in the way of attain­ing freedom (to provide services) duringthe transitional period, the second being

to introduce into the law of MemberStates a set of provisions intended tofacilitate the effective exercise of thisfreedom for the purpose of assistingeconomic and social interpenetrationwithin the Community in the sphere ofactivities as self-employed persons.

The continuing importance of the secondfunction is at least as great in connexionwith the provision of services as in thefield of establishment. In view of the

transitory nature of the provision ofservices, in contrast with the permanenceimplied in the concept of establishment,the problems of control and disciplineare even more serious in the field of the

provision of services, and the freedom toprovide a service requires a correspond­ing protection for those utilizing theservice. The only satisfactory solution tothese difficulties is by means ofCommunity directives.

The Government of the Federal Republicof Germany considers that taking intoaccount the interpretation which must begiven to Article 59 there is no difficultyin recognizing that this article has directeffect on the expiry of the transitionalperiod. The rule of equality of treatmentwith nationals may, by definition, beinvoked directly by nationals of allMember States and this applies in par­ticular in the field of freedom to provideservices.

It is necessary, however, to have regardto disguised restrictions on this freedom,which are prohibited, and to distinguishthem from the permitted restrictions,which must be progressively abolishedby harmonization or by coordination.The question arises whether a conditionrelating to residence constitutes adisguised restriction, especially if it isformulated in such a general mannerthat it can, in fact, be satisfied only bynationals. That is a problem which mustbe judged in the light of each individualcase; the question remains whether, evenafter the expiry of the transitionalperiod, it is not necessary to issuedirectives based on Article 59 so asto put an end to disguised restrictions.

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JUDGMENT OF 3. 12. 1974 — CASE 33/74

In conformity with the case-law of theCourt, Article 59 must be considered asa whole. Moreover, the execution ofArticle 59 is not conditional upon theimplementation of a programme ofprogressive measures; it prescribes, incategorical terms, the abolition ofrestrictions on freedom to provideservices. Article 64 has, since the end ofthe transitional period, become super­fluous and does not preclude the directapplicability of Article 59.

In reply to the first question, it must bestated that Articles 59 and 60 are directlyapplicable.The Commission is of the opinion thatthe question of the direct applicability ofArticles 59 and 60 of the EEC Treatypresupposes a preliminary examinationof their wording and scope. Withoutprejudice to the observations submittedin relation to the second question, thefollowing statements can be made in thelight of the criteria defined in the case-law of the Court in relation to directeffect:

(a) Article 59 and the third paragraph ofArticle 60 establish a specific rule in aclear and precise manner: by Article 59each Member State is obliged not to sub­ject services provided by Communitynationals established in other MemberStates to conditions which are more

restrictive than those which would governthose services if they had been providedby nationals established within its ownterritory. The meaning of the concept'restriction' is clear, as appears in par­ticular from its use in Article 62,which is a provision universallyrecognized to be directly applicable. Thenational court does not have to enterinto more complex considerations whendealing with cases relating to theprovision of services than with casesinvolving other Articles of the Treatywhich the Court has recognized to bedirectly applicable.

(b) Taking into account its similaritywith Article 52, the obligation underArticle 59 must be recognized as

unconditional: apart from the sectionrelating to the progressive nature of theobligation, Article 59 contains noparticular condition precedent to itsexecution. The exceptions to freedom toprovide services, provided for in Articles55 and 56, are sufficiently precise and,since they constitute a derogation fromthe general rules of the Treaty, theymust be strictly interpreted. Nor is therule contained in the third paragraph ofArticle 60 subject to any condition.

(c) In relation to the criterionaccording to which the implementationof the obligation must not be dependenton the adoption of further measures bythe Member States or by the Communityinstitutions, Article 59, considered inconjunction with the third paragraph ofArticle 60, does not present a morecomplex situation than Article 52, whichthe Court has recognized to be directlyapplicable: the phrase 'within theframework of the provisions set outbelow' refers to the implementingmeasures to be adopted by theCommunity pursuant to Article 63. Thegeneral programme for the abolition ofrestrictions on freedom to provideservices was adopted by the Council on18 December 1961 (OJ 1962, p. 32) and,furthermore, it follows from the case-lawof the Court, in particular the Reynersjudgment, that, failure, during thetransitional period, to issue the directivesprescribed by Article 63 (2) does notprevent Article 59 from being recognizedas having direct effect. Article 59imposes a well-defined obligation, thefulfilment of which was to be facilitated

by, but not conditional upon, theimplementation of a programme ofprogressive measures. The directivesrelating to this matter, which were to beissued by the Council, do not conferupon it, among other things, adiscretionary power to ensure theapplication of the principle of equality oftreatment with nationals.

(d) The first question put by theCentrale Raad van Beroep shouldtherefore be answered as follows:

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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

Article 59 and the third paragraph ofArticle 60 of the EEC Treaty have been,since the end of the transitional period,directly applicable, notwithstanding thepossibile absence, in a particular field, ofthe directives prescribed by Articles 63and 57.

B — The second question

The appellant in the main action is ofthe opinion that the third paragraph ofArticle 60, in that it emphasizes thetemporary nature of the employment ofthe person providing the service in thecountry where that service is provided,prohibits rules requiring habitualresidence. Moreover, it must be statedthat the reference to the temporarynature of the provision of services doesnot relate in any way to its frequency.The Government of the United Kingdomconsiders that where a condition im­posed by a Member State on its ownnationals requires a residential qualifi­cation, and the condition does notdiscriminate between nationals of thehost State and nationals of other MemberStates, the condition would not beinconsistent with the provisions of theTreaty relating to freedom to provideservices if there were circumstances under

which the condition could properly byjustified. For example, persons carryingon activities involving special risk toothers dealing with such persons mayvalidly be subjected to conditions basedon residence for the due protection ofsuch other persons.The Government of the Federal Republicof Germany stresses the importance ofthe problems involved in theinterpretation of Articles 59 and 60 andthe significance which the Court's repliesmay have for, among others, the legalprofession and in particular theprofession of advocate.The fundamental rules on the right ofestablishment and the provision ofservices are broadly similar. Articles 59and 60, like Article 52 on freedom ofestablishment, enshrine, in the field offreedom to provide services, the

principle of the prohibition of anydiscrimination on grounds of nationalityestablished in Article 7 of the Treaty.This interpretation is endorsed acontrario by Article 67. It is also dictatedby the general scheme of the Treaty:

Article 66 declares that the provisions ofArticles 55 to 58, therefore includingArticle 57, apply to the chapter on theprovision of services. Directives are to beissued for the mutual recognition ofdiplomas and for the coordination ofnational provisions concerning thetaking up and pursuit of activities asself-employed persons. These measuresof coordination, based on Articles 66and 57, are to be distinguished from themeasures to be taken for the abolition of

restrictions on freedom to provideservices; these were the subject, duringthe transitional period, of the provisionsof Article 63. As a general rule it is notenough that restrictions based onnationality have been abolished incompliance with Articles 59 and 63; theeffective realization of freedom toprovide services also requires, inparticular as regards the professions,measures of harmonization andcoordination. In other words, nationalrules which make the provision ofservices across a frontier more difficult orimpossible do not fall within theprovisions of Article 59, requiring thefull realization of the principle ofequality of treatment with nationals,unless they treat nationals of otherMember States less favourably. It isappropriate, in this respect, to recall thatthere exist rules which, while notformally establishing any distinctionbetween nationals and foreigners, do, infact, work to the disadvantage, aboveall, if not exclusively, of foreignnationals.

It follows from the very idea of freedomto provide services, and in particularfrom the third paragraph of Article 60,that all restrictions precluding theperformance of a service beyond anational frontier are in principleincompatible with the Treaty. Conse­quently, provisions which demand that

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JUDGMENT OF 3. 12. 1974 — CASE 33/74

the person providing the service mustreside or be established within thecountry where the service is providedmust in principle be abolished. However,an exception should be made for provi­sions which fix residential conditions

applicable to the exercise, within a coun­try, of a profession by nationals of thecountry; such provisions are legitimatein the case of lawyers. In such a case, therestrictions at issue must be examined toascertain whether they are essential andnecessary for the exercise of the activityin question.

Articles 59 and 60 prescribe theapplication of the principle of equality oftreatment with nationals in the field offreedom to provide services, but not themutual recognition of diplomas,certificates and other evidence of formalqualifications. They prohibit all expressdiscrimination against nationals of otherMember States and, in fact, all arbitrarytreatment of a less favourable nature;conditions of residence or of establish­ment are, in principle, prohibitedby the third paragraph of Article 60,save for a number of exceptions justified,as regards certain activities orprofessions, by the protection of interestsof particular importance to thecommunity.

The Commission observes that the aim

of the Treaty, in the field of freedom toprovide services, is to prevent theprovision of services from being mademore difficult in any way, either directlyor indirectly, from the point of view ofthe person receiving the service or of theservice itself, by reason of the fact that itis performed beyond the frontier of aMember State, irrespective of thenationality of the parties concerned. Inthis respect, freedom to provide servicesis similar to the free movement of goodsbased on Articles 12 and 13 of the EECTreaty.

Furthermore, there can be nodiscrimination on the basis ofnationality. In the field of freedom toprovide services, this principle istypically contravened by provisions

which lay down a condition of residenceor habitual residence in the countrywhere the activity is to be exercised: thisis the case with Article 48 (1) of theBeroepswet. The latter in fact constitutesan absolute restriction on freedom toprovide services; the requirement ofresidence or habitual residence in thecountry where the service is to beprovided is incompatible with the veryconcept of the provision of services. Onthe other hand, the obligation to have anaddress for service in the Netherlands,prescribed by Article 90 of theBeroepswet, does not come within theprohibition of Article 59, since it doesnot require a qualifying period ofresidence in the host country and doesnot apply to an economic activity fallingwithin the ambit of the Treaty. Nor canit be likened to restrictions whichconflict with the principle of equality oftreatment for foreigners and nationals.As to those types of service the provisionof which entails a move by the personproviding the service to the country ofthe person for whom the service isintended, the prohibition of restrictionsdifferentiating between those who areestablished in one State and who wish toprovide services in another and thosewho are established in the State wherethe service is provided, finds expressionin the third paragraph of Article 60 ofthe EEC Treaty. The result of thisprovision is that a Member State cannotsubject the exercise of an activity orprofession by nationals established inother Member States to conditionswhich are stricter than those imposed onpersons established within its ownterritory. These restrictions are notnecessarily evidenced by differences intreatment based on nationality.Differences between the respective legalprovisions of Member States which leadto restrictions, in particular as regardsrequirements relating to professionalknowledge or rules regulating theexercise of a profession, are not to beconsidered as 'restrictions' within themeaning of Article 59. In such cases, theobstacle does not arise from the fact that

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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

a Member State treats the personproviding services differently frompersons established within the territoryof the host country. This type ofobstacle falls within the provisions ofArticle 57 of the EEC Treaty, which isapplicable, through Article 66, toservices. As regards those measureswhich apply indiscriminately to nationalsand foreigners, it is essential to ascertainwhether they exceed the specific effectswhich they are intended to have.

In respect of the present case, it must beborne in mind that Articles 59 and 60 ofthe EEC Treaty have as their purpose,within the framework of the provisionsrelating to services, to eliminate anyobstacle created by a Member State byreason solely of the fact that the activityconcerned entails the crossing offrontiers. Such restrictions arise fromlegal provisions or restrictive practiceswhich:

— oblige the person providing theservice to maintain his habitualresidence or simply to reside in the

country where he intends to providethe service;

— discriminate between, on the onehand, Community nationals who areestablished within the Member Statewhere the service is provided and, onthe other hand, those who areestablished outside that State;

— distinguish between persons, in thefield of the provision of services, onthe basis of nationality.

The following reply might therefore begiven to the second question:

Within the framework of the provisionsrelating to freedom to provide services,Articles 59 and 60 of the EEC Treatyhave as their aim the abolition of anyrestriction on freedom to provideservices imposed by a Member Statewhich is based on the fact that the saidprovision of services is an act which,even though performed by a national ofanother Member State, neverthelessentails the crossing of frontiers.

Law

1 By order of 18 April 1974, lodged at the Registry of the Court on 15 May,the Centrale Raad van Beroep put to the Court, under Article 177 of the EECTreaty, questions relating to the interpretation of Articles 59 and 60 of theTreaty establishing the European Economic Community concerning freedom toprovide services within the Community.

2 These questions arose incidentally, during the course of an action before thesaid court, and are concerned with the admission before that court of theperson whom the appellant in the main action chose to act as his legalrepresentative.

3 It appears from the file that the appellant had entrusted the defence of hisinterests to a legal representative of Netherlands nationality entitled to act forparties before courts and tribunals where representation by an advocaat is notobligatory.

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JUDGMENT OF 3. 12. 1974 — CASE 33/74

4 Since this legal representative had, during the course of the proceedings,transferred his residence from the Netherlands to Belgium, his capacity torepresent the party in question before the Centrale Raad van Beroep wascontested on the basis of a provision of Netherlands law under which onlypersons established in the Netherlands may act as legal representatives beforethat court.

5 In support of his claim the person concerned invoked the provisions of theTreaty relating to freedom to provide services within the Community, andthe Centrale Raad van Beroep referred to the Court two questions relatingto the interpretation of Articles 59 and 60 of the Treaty.

The actual scope of Articles 59 and 60

6 The Court is requested to interpret Articles 59 and 60 in relation to a provisionof national law whereby only persons established in the territory of the Stateconcerned are entitled to act as legal representatives before certain courts ortribunals.

7 Article 59, the first paragraph of which is the only provision in question inthis connexion, provides that: 'Within the framework of the provisions setout below, restrictions on freedom to provide services within the Communityshall be progressively abolished during the transitional period in respect ofnationals of Member States who are established in a State of the Communityother than that of the person for whom the services are intended'.

8 Having defined the concept 'services' within the meaning of the Treaty in itsfirst and second paragraphs, Article 60 lays down in the third paragraph that,without prejudice to the provisions of the chapter relating to the right ofestablishment, the person providing a service may, in order to provide thatservice, temporarily pursue his activity in the State where the service isprovided, under the same conditions as are imposed by that State on its ownnationals.

9 The question put by the national court therefore seeks to determine whetherthe requirement that legal representatives be permanently established within

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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

the territory of the State where the service is to be provided can be reconciledwith the prohibition, under Articles 59 and 60, on all restrictions on freedomto provide services within the Community.

10 The restrictions to be abolished pursuant to Articles 59 and 60 include allrequirements imposed on the person providing the service by reason in parti­cular of his nationality or of the fact that he does not habitually reside inthe State where the service is provided, which do not apply to personsestablished within the national territory or which may prevent or otherwiseobstruct the activities of the person providing the service.

11 In particular, a requirement that the person providing the service must behabitually resident within the territory of the State where the service is to beprovided may, according to the circumstances, have the result of deprivingArticle 59 of all useful effect, in view of the fact that the precise object ofthat Article is to abolish restrictions on freedom to provide services imposedon persons who are not established in the State where the service is to beprovided.

12 However, taking into account the particular nature of the services to be provi­ded, specific requirements imposed on the person providing the service cannotbe considered incompatible with the Treaty where they have as their purposethe 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 theState in which the service is provided, where the person providing the servicewould escape from the ambit of those rules being established in anotherMember State.

13 Likewise, a Member State cannot be denied the right to take measures toprevent the exercise by a person providing services whose activity is entirelyor principally directed towards its territory of the freedom guaranteed byArticle 59 for the purpose of avoiding the professional rules of conduct whichwould be applicable to him if he were established within that State; such asituation may be subject to judicial control under the provisions of thechapter relating to the right of establishment and not of that on the provisionof services.

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JUDGMENT of 3. 12. 1974 — case 33/74

14 In accordance with these principles, the requirement that persons whosefunctions are to assist the administration of justice must be permanentlyestablished for professional purposes within the jurisdiction of certain courtsor tribunals cannot be considered incompatible with the provisions ofArticles 59 and 60, where such requirement is objectively justified by theneed to ensure observance of professional rules of conduct connected, inparticular, with the administration of justice and with respect for professionalethics.

15 That cannot, however, be the case when the provision of certain services ina Member State is not subject to any sort of qualification or professionalregulation and when the requirement of habitual residence is fixed byreference to the territory of the State in question.

16 In relation to a professional acitivity the exercise of which is similarlyunrestricted within the territory of a particular Member State, the requirementof residence within that State constitutes a restriction which is incompatiblewith Articles 59 and 60 of the Treaty if the administration of justice cansatisfactorily be ensured by measures which are less restrictive, such as thechoosing of an address for service.

17 It must therefore be stated in reply to the question put to the Court thatthe first paragraph of Article 59 and the third paragraph of Article 60 ofthe EEC Treaty must be interpreted as meaning that the national law of aMember State cannot, by imposing a requirement as to habitual residencewithin that State, deny persons established in another Member State theright to provide services, where the provision of services is not subject toany special condition under the national law applicable.

The question of the direct applicability of Articles 59 and 60

18 The Court is also asked whether the first paragraph of Article 59 and thethird paragraph of Article 60 of the EEC Treaty are directly applicable andcreate individual rights which national courts must protect.

19 This question must be resolved with reference to the whole of the chapterrelating to services, taking account, moreover, of the provisions relating tothe right of establishment to which reference is made in Article 66.

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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

20 With a view to the progressive abolition during the transitional period of therestrictions referred to in Article 59, Article 63 has provided for the drawingup of a 'general programme' — laid down by Council Decision of 18 De­cember 1961 (1962, p. 32) — to be implemented by a series of directives.

21 Within the scheme of the chapter relating to the provision of services, thesedirectives are intended to accomplish different functions, the first being toabolish, during the transitional period, restrictions on freedom to provideservices, the second being to introduce into the law of Member States a setof provisions intended to facilitate the effective exercise of this freedom, inparticular by the mutual recognition of professional qualifications and thecoordination of laws with regard to the pursuit of actitivities as self-employedpersons.

22 These directives also have the task of resolving the specific problemsresulting from the fact that where the person providing the service is notestablished, on a habitual basis, in the State where the service is performedhe may not be fully subject to the professional rules of conduct in force inthat State.

23 As regards the phased implementation of the chapter relating to services,Article 59, interpreted in the light of the general provisions of Article 8 (7)of the Treaty, expresses the intention to abolish restrictions on freedom toprovide services by the end of the transitional period, the latest date forthe entry into force of all the rules laid down by the Treaty.

24 The provisions of Article 59, the application of which was to be preparedby directives issued during the transitional period, therefore became uncondi­tional on the expiry of that period.

25 The provisions of that article abolish all discrimination against the personproviding the service by reason of his nationality or the fact that he isestablished in a Member State other than that in which the service is to be

provided.

26 Therefore, as regards at least the specific requirement of nationality or ofresidence, Articles 59 and 60 impose a well-defined obligation, the fulfilment

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of which by the Member States cannot be delayed or jeopardized by theabsence of provisions which were to be adopted in pursuance of powersconferred under Articles 63 and 66.

27 Accordingly, the reply should be that the first paragraph of Article 59 andthe third paragraph of Article 60 have direct effect and may therefore berelied on before national courts, at least in so far as they seek to abolish anydiscrimination against a person providing a service by reason of his nationalityor of the fact that he resides in a Member State other than that in which

the service is to be provided.

Costs

28/29 The costs incurred by the Government of Ireland, the Government of theUnited Kingdom of Great Britain and Northern Ireland, the Governmentof the Federal Republic of Germany and the Commission of the EuropeanCommunities, which have submitted observations to the Court, are notrecoverable and as these proceedings are, in so far as the parties to themain action are concerned, a step in the action pending before the CentraleRaad van Beroep, costs are a matter for that court.

On those grounds,

THE COURT

in answer to the questions referred to it by the Centrale Raad van Beroepby order of 18 April 1974, hereby rules:

1. The first paragraph of Article 59 and the third paragraph of Article 60of the EEC Treaty must be interpreted as meaning that the nationallaw of a Member State cannot, by imposing a requirement as tohabitual residence within that State, deny persons established in anotherMember State the right to provide services, where the provision ofservices is not subject to any special condition under the nationallaw applicable;

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VAN BINSBERGEN v BEDRIJFSVERENIGING METAALNIJVERHEID

2. The first paragraph of Article 59 and the third paragraph of Article60 have direct effect and may therefore be relied on before nationalcourts, at least in so far as they seek to abolish any discriminationagainst a person providing a service by reason of his nationality or ofthe fact that he resides in a Member State other than that in which

the service is to be provided.

Lecourt Ó Dálaigh Mackenzie Stuart Donner Monaco

Mertens de Wilmars Pescatore Kutscher Sørensen

Delivered in open court in Luxembourg on 3 December 1974.

A. Van Houtte

Registrar

R. Lecourt

President

OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 13 NOVEMBER 1974 <appnote>1</appnote>

Mr President,

Members of the Court,

On 21 June 1974 you gave a preliminaryruling requested of you by the Conseild'État of Belgium. The questions put toyou concerned the interpretation ofArticles 52 and 55 of the Treatyestablishing the European EconomicCommunity. One of the questions youwere asked was whether the provisionsof Article 52 of the Treaty were, sincethe end of the transitional period,directly applicable to the profession ofavocat despite the absence of directivesas prescribed by Articles 54 (2) and 57(1).

The right of establishment, as it isdefined in Chapter 2 of Title III of the

Treaty of Rome, was therefore thematter in issue in that previous case.The preliminary questions referred toyou by the Centrale Raad van Beroep,the Netherlands court of last instance insocial security matters, raise, in the fieldof the provision of services dealt with inChapter 3 (Articles 59 to 66) of theTreaty, problems similar to those whichyou decided in the Reyners Judgmentwhich I have just recalled.I will therefore have occasion to refer to

the general purport of that decision, inso far at least as Chapter 3 of the Treatyis inspired by principles similar to thosegoverning freedom of establishmentunder Chapter 2.However, I must first of all set out thefacts giving rise to the main action.

1 — Translated from the French.

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