The Gazette 1975

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 if 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.* 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 * Official translation. Implications of the Rcyners and Van Binsbcrgcn Cases

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. 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- * Official translation.