The Gazette 1975

was that it obviously cannot be left to Member States to determine themselves the nature and score of ifie exemption given in Article 55 and thus alter as they please the scope of the right of establishment. Á Community definition of the concept of the exercise °f official authority is necessary.' The Commission suggested that this" should be defined as: 'The exercise of prerogatives outside the general law, powers of constraint with regard to persons and possessions, which ordinary citizens do not have and which enable him on whom they are

conferred to act independently of the consent el- even against the will of the other person." The Court did not adopt the Commission's defini- tion, although it might have been preferable had it done so. It merely stated, rather vaguely, that in the application of the exception in the different Member States "the Community character of the limits imposed by Article 55 on the exceptions permitted" must be taken into account "in order to avoid the effectiveness of the Treaty being defeated by unilateral provisions of Member States."

(Part II will deal with the Van Binsbergen and Wallrath Koch eases.)

Proceedings of the Court of Justice of the European Communities

On 3 December 1974, the Court of Justice of the European Communities accepted the solemn declara- tion of Mr. Guido Brunner, the new Member of the Commission of the Eureopean Communities for the P®nod from 12 November 1974 to 5 January 1977, nominated to replace Mr. Ralf Dahrendorf. who has «ken up the duties of Principal of the London School o f Economics. Case 33/74 — Van Binsbergen v Board of Trade of the Engineering Industry in the Hague. . In the Netherlands, the profession of legal adviser * s n o t subject to any rules or regulations and is not ^pendent on anv sort of qualification or professional d, scipline. The appellant in the main action had authorized M r - X, who exercises this profession of legal agent, to r ®present him before the Netherlands Appeal Court o f Social Security. . During the course of the proceedings, Mr. X, who J s a Dutch national, transferred his habitual residence the Netherlands to Belgium. The Registry of the ^ u a l Security Court then informed him that he no longer entitled to act as an authorized legal o f P n S e n t a t i v e o r a d v i s e r « s i n c e t b e r u l c s P r o c e d u r e e t K- tC ^ S 0 c i a í ^ibunals prescribe that only persons stablished in the Netherlands are entitled to exercise Aose functions. These facts led the Social Security ^ n r t to refer two preliminary questions to the Court Justice of the European Communities on the inter- a c t i o n of the provisions of the Treaty of Rome ating to freedom to provide services within the ^cjnmunity. In its reply the Court ruled that the pro- t h a ? "I t h e T r e a t y m u s t b e interpreted as meaning a t the national law of a Member State cannot, by

requiring habitual residence with that State, make impossible the provision of services by persons established in another Member State, when the pro- vision of services is not subject to any special con- dition by the National Law applicable. The Court also confirmed the direct effect of Articles 59 and 60 of the Treaty, at least in so far as they seek to abolish any discrimination on grounds of nationality or residence within any State of the Community. Case 41/74—Van Duyn v the Home Officc (Preliminary ruling) 4.12.74 This is a "first" for the Court of Justice of the European Communities, being the first time that the Court has had to reply to a preliminary question referred by a British court, in this case the Chancery Division of the High Court, and the first time in its case-law that the problem concerning the proviso of public policy in relation to freedom of movement for workers has arisen. The facts are straightforward. A woman of Dutch nationality arrived in Great Britain to take up employment as a secretary with the Church of Scientology, of which she is a practising member. She was refused leave to enter the United Kingdom on the grounds that the Government considers the activities of the said organization to be harmful and to constitute a social danger. The plaintiff, who was sent back to the Netherlands, brought an action against the Home Office in which she invokes Article 48 of the EEC Treaty, which guarantees freedom of movement for workers, and, in particular, a Council Directive providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned (which tends to limit the discretionarv 40