The Gazette 1975

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