78 / 336
Legal Europe
F R E E D OM O F E S T A B L I S HME NT A N D F R E E D OM TO P R O V I DE S ERV I CES IN
T H E E . E .C. AS I L L U S T R A T ED BY TWO R E C E NT J U D G E M E N TS O F T H E C O U RT
O F J U S T I CE
by
GERALD FITZGERALD, SOLICITOR, BRUSSELS
Part 2
ThcVan Binsbergen Case — Freedom to Provide
Services
The second Judgment, with which this article is
concerned, which dealt with the freedom to provide
services, was delivered on 3rd December 1974 in
Case 33/74 Van Binsbergen v. Het Bestuur van de
Bedrifsverenining voor de Metaalnijverhcid (Board of
Trade Association of the Engineering Industry).
The freedom to provide services, which is covered
by Article 59 to 66 of the EEC Treaty, is the right of
a person (or company as defined by Article 58
established in one Member Slate tp provide services
to persons resident in any other Member State. The
service which the beneficiary of the right is entitled
to provide; is the same economic activity which he
carries on as a self-employed person in the country
in which he is established. The provision of the service
may involve the movement of either the provider or
the recipient of the service from his State to that of
the other. On the oth&r hand, it may involve no
physical movement by either party (as for example,
where the service is provided by correspondence).
While the freedom to provide services is obviously an •
extension of the right of establishment, the distinction
between the two consists in the cross-frontier element
which alwax's exists in the provision of services. The
distinction can have important practical consequences,
most obviously in relation to the control by the
receiving Member State of activities Carried on by
someone established in another Member State.
The provisions of the Treaty relating to the freedom
to provide services are similar to those governing the
right of establishment.
Article 59 provides that "restrictions on freedom
to provide services within the Community shall be
progressively abolished during the transitional period
in respect of nationals of Member States who are
established in a State of the Community other than
that of the person for whom the services are intended."
Article 60 defines "services" and states that the
term is intended in particular to include activities of
8n industrial or commcrcial character, activites of
craftsmen and activities of the professions.
Article 63 is similar to Article 54, and also provides
for a General Programme (adopted by the Council in
December 1961) and for the implementation of the
General Programme by Council Directives.
Article 66 provides that Articles 55 to 58 of the
Treaty shall apply to the freedom to provide services.
Thus, the co-ordination and mutual recognition pro-
visions of Article 57 are as relevant to the freedom to
provide services as they are to the right of establish-
ment and the exemption provisions of Articles 55 and
56 apply equally to the provision of services.
The facts of the Van Binsbergen Case were simple.
In July 1972, Mr. Van Binsbcrgen, a Dutch national,
instructed a Mr. Kortmann, a Dutch legal adviser
resident in the Netherlands, to represent him before
the Dutch Social Security Appeal Tribunal in an
appeal concerning unemployment insurance.
After lodgment of the appeal, Mr. Kortmann moved
his residence to Belgium and wrote to the Tribunal
seeking documents which he required in order to
draft the pleadings.
In November 1973 the Registry of the Tribunal
informed him that he was unable to comply with his
request, since the relevant Dutch law restricted the
right of representation before the Tribunal to persons
established in the Kingdom of the Netherlands.
Mr. Kortmann argue that such a provision con-
stituted a restriction on the freedom to provide
services and was therefore in conflict with Articles 59
and 60 of the EEC Treaty, which were directly applic-
able since the end of the transitional period.
In April 1974, the Tribunal applied to the Court of
Justice under Article 177 of the Treaty for replies to
the following questions:
"1. Are Articles 59 and 60 of the EEC Treaty
directly applicable and do they create, for the
beneficiaries, individual' rights which national
tribunals must protect?
2. If the answer to the first question is affirma-
tive, what is the meaning of these Articles, in
particular, the last sentence of Article 60?"*
* Official translation.
(The last sentence of Article 60 reads: "Without pre-
judice to the provisions of the Chapter relating to
the right of establishment, the person providing a
service may, in order to do so, temporarily pursue
his activity in the State where the service is provided,
under the same conditions as are imposed by that
State on its own nationals.")
I. The Direct Applicability of Articles 59 and 60
Representations on this question were submitted
by Mr. Kortmann, the Governments of Germany,
75