The Gazette 1975

Ireland, and the UK and the Commission. With the

sole and curious exception of Ireland, all these

parties argued that these Articles must be con-

sidered directly applicable. The Irish Government,

surprisingly in view of the Kcyncrs Decision,

argued against the direct applicability of the

be narrowly confined to the prohibtion pn restrictions

based on nationality or residence—the abolition of

other restrictions should be dealt with by directives,

fhis appears to have been the solution adopted by

the Court.

The Court dealt briefly with the question. It decided

that the prohibitions on restrictions contained in

Articles 59 and 60 are clear and unconditional pro-

visions of the Treaty, and that the directives eliminat-

ing such restrictions required by Article 6 Í became

superfluous at the end of the transitional period. It

concluded that the Articles are directly applicable—

at least insofar as discrimination based on the

nationality or residence of the provider of services are

concerned. Once again however, it emphasised that

the directives required to implement the effective

exercise of the freedom remained important, particu-

larly in relation to the control of the activities of the

provider of services in the State in which the services

a~e provided.

In the operative part of the Judgment, the Court

held that "Articles 59, first sentence, and 60, third

sentence, have a direct effect and

ir.ay

henceforth be

"fclied on before National Courts, at least ("en tout

cas") in so far as they seek to abolish any discrimina-

tion against a person pioviding a service by reason of

his nationality or of the fact that he resides in a

" Icmber State other than that in which the service is

to be provided."*

While it is clear from this that restrictions based

on nationality or residence are no longer enforceable,

the wording is unfortunately ambiguous on the

question of the validity of other restrictions on the

provision of services. The explanation probably lies

in the fact that restrictions required to protect the

public against abusive exercise of the freedom remain

justifiable.

* Official translation.

2. Meaning of Article 60 (3)

In its reply to this question, the Court spelt out the

Practi il meaning of Articles 59 and 60 in un-

ambigu ius language.

It held that these Articles prohibit all restrictions

on the provision of services which are not equally

applicable to persons established in the host State. In

more general terms, it condemned all restrictions

which interfere with the free provision of services

across frontiers, and specifically cited restrictions

based on nationality or restrictions requiring the

provider of services to maintain a residence in the

host State. Such restrictions would render Article 59

quite meaningless in practice.

T h e C o u r t acknowledged however that obligations

imposed on the provider designed to ensure the

observance of professional rules in the public interest

Were justifiable, provided they also applied to every-

one established in the State in which the service is

provided. Thus, it considered the requirement that

legal advisers should have an office (un établissemcnt

profcssioncl stable") within the jurisdiction of a given

court as justifiable

the obligation is necessary in

order to guarantee the observance of professional rules.

It concluded that, where no professional qualifica-

tion is required in order to pursue a given activity

and that activity is not subject to any disciplinary

organisation (as is the case for legal advisers — as

opposed to Advocaatcn — in the Netherlands), then

the requirement that a provider of such services should

have a residence in the host Member State is

incompatible woth Articles 59 and 60.

The operative part of paragraph 1 of the Judgement

reads:

"The first paragraph of Article 59 and the third

paragraph of Article 60 of the EEC Treaty must

be interpreted as meaning that the national law

of a Member State cannot, bv imposing a require-

ment as to habitual residence within that State,

deny persons established in another Member

the right to provide services, where the provision

of services is not subject to any special condition

under the national law applicable.*

* Official translation.

Implications of the Rcyners and Van Binsbcrgcn

Cases

The direct legal consequences of the direct applic-

ability of Articles 52, 59 and 60 are simply stated.

Where establishment is involved, any restrictions in

the law or administrative regulations of any Member

State which discriminate against nationals or other

Member States on the grounds of their nationality

are unenforceable. Where the provision of services is

concerned, restrictions related to the fact that the

provider of services resides in another Member State,

as well as restrictions based on nationality, are

uneforceable.

The practical implications are not quite as simply

stated.

The significance of t he ,Reyne rs decision in anv

given Member State will depend upon the extent to

which its legislation or administrative practices have

in the past restricted the right of establishment of

non-nationals. Ireland's policy in this field has not

been particulalv restrictive, but well known restric-

tions have existed in the Insurance Act 1936, the

licensing requirements of the Central Bank and the

Land Act 1965. The Government's Fourth Report on

Developments in the European Communities, pub-

lished in January 1975, states that the implications of

the Reyners decision are under examination in the

various Government Departments. The Report was

written before the Binsbergcn Judgment was delivered.

An example of the practical relevance of the van

Binsbcrgcn decision has already arisen in an even

more recent case before the Court of Justice, in which

judgment was delivered on 12th December 1974, the

facts of which were not such as one might at first