The Gazette 1975

sight expect to involve points of Community law:

(Case 36

74, Walrave and Koch v. Association Union

Cvclistes Internationale and others, unreported).

Messrs. Walrave and Koch, Dutch nationals, are

professional pacemakers who se function in a certain

type of cycle race is to precede on motorbikes cyclists

(called "stayers") who, by travelling in the lee of

the pacemakers, are able to achieve much greater speed

than would otherwise be possible. Messrs.

Wallace

and Koch are seemingly among the best pacemakers

in the world and their services are therefore in con-

siderable demand. In November 1970, the UC1 altered

its rules to provide that "as from 1973 the pacemaker

must be of the same nationality as the stayer". The

plaintiffs considered this provision to be inconipatible

with the prohibition in the EEC Treaty against dis-

crimination on the grounds of nationality and, in

particular, the prohibition contained in Article 59.

The Court pointed out thai the practice of spo.t

is subject to the provisions of Community law only

insofar as it constitutes an economic activity within

the meaning of Article 2 of the Treaty. It also stressed

that the prohibition against discrimination on the

grounds of nationality is obviously not intended to

affect the formation of sports teams, in particular

national teams. (To reach this conclusion, the English

Advocate General suggested to the Court that the well-

known "lest of the officious bystander" should be

applied in interpreting the Treaty — a small example

of how the Common Law can influence the develop-

ment of Community Law). Thus, if the pacemaker and

stayer constitute a team, the provisions of the Treaty

are irrclevant and the UCI rule can be enforced. On

the other hand, if the real competitors in the sport are

the individual cyclists, the pacemakers merely hiring

out their services on a professional basis in the same

way as professional managers or masseurs, then the

prohibition in Article 59 would be relevant. The

decision as to whether or not the pacemaker and stayer

constitute a team is a matter for the national judge

who referred the case to the Court.

One of the more interesting points decided by the

Court in the Walravc case was that tl^e prohibition

against discrimination on the grounds of nationality

applies not only to the actions of public authorities

But a'.so to rules of any other nature collectively

regulating employment and the provision of services.

It is thus clear that discriminatory provisions in the

rules of private associations such as professional or

trade union organisations are equally affected by the

prohibition on discrimination contained in Article 59

(or Articles 52 or 48 for that matter).

Although the Reyners and van Binsbergen decisions

are welcome for their clarification of the law, and for

the impetus towards the effective implementation of

the freedom of establishment and the free provision of

services which must result from them, the situation

now existing is not entirely satisfactory.

As was pointed out by the Belgian Government

'n its submissions in the Reyners case, the result of

toe Cóbrt's decision that Article 52 is directly applic-

able, insofar as the prohibition on restrictions based

°n nationality is concerned, is the creation of "a

hybrid right of establishment, in which the other

restrictions are maintained, thus creating a discrimina-

tory system from State to State". For example,

ire

Court's decision leaves unanswered the question

;

the validity of the other restrictions im *osed r;.

Belgium on nationals of other Member States seckmi.

admission as Avoeats, namely the requirement . c-:'

residence in Belgium for six years prior to the applica-

tion and the prohibition on membership of a foreign

Bar. The burden of such restrictions would seem

V .

lie much more heavily on foreigners than on Belgians,

so that they probably constitute disguised discrimina-

tions against non-nationals, which are, of course, as

incompatible with Article 52 as open discrimination.

These are the sort of matters which should be clarified

by directives rather than by further litigation.

Another practical consequence may be a tendency

for people wishing to pursue a ecrtain activity to do

so in a Member State where the e n i iy requirements

are low or non-exislent rather than in one where the

entry requirements are severe. Such a tendency can

only be corrected through the co-ordination, also bv

means

directives,

minimum

qualification

standards throughout the Community.

Another difficult problem which remains unsolved is

how a receiving Member State is to ensure that a

provider of services, who is of course established in

another Member State, is to be made answerable for

his activities on its territory. The requirement that a

person providing services merely on a temporary and

occasional basis should belong to the relevant pro-

fessional organisation in the receiving Member Stale

as well as in his own Member State, is more than is

strictly necessary to achieve the required degree of

control, and is therefore an unwarranted restriction on

the freedom to provide services. The solution to this

problem again can only be achieved by means of co-

ordination directives. There are a number of ways in

which control can be achieved in an unrestrictive way.

The lawyers' draft directive on the provision of

services suggested that it should be done by requiring

the lawyer providing services to produce evidence of

membership of his own Bar, and obliging him to use

only the form of title used in the country in which he

is established. The relevant doctors' directive obliges

docto-s who visit another Member State temporarily

to inform the competent authority in that Member

State so that it can ensure the observance of the rules

of professional discipline of that country.

As far as most economic activities are concerncd,

the decisions are of little practical significance, since

restrictions on freedom of establishment or the

freedom of establishment or the freedom to provide

services in the spheres of virtually all industrial, com-

mercial and craft activities have already been abolished

by means of Council Directives implementing the

General Programme.

On the other hand, the decisions are of considerable

significance for activities in respect of which directives

have not yet been adopted, particularly such activities

as may be carried on any given Member State free of

controls such as minimum qualification requirements

or other licensing conditions. Since the decisions mean

that no Member State may now apply to nationals of

other Member States conditions more onerous than