The Gazette 1975

sight expect to involve points of Community law: (Case 36 Y 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 of directives, of 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 77