CJEC, January 18, 1979, No 110-78

THE COURT

1 By two judgments both delivered on 21 march 1978 and received at the court of justice on 8 may 1978, the tribunal de premiere instance de tournai referred under article 177 of the eec treaty several questions on the interpretation of council directive 67-43-eec of 12 january 1967 ( official journal, english special edition 1967, p. 3 ) and of certain provisions of the eec treaty relating to freedom to provide services.

2 These questions were raised in the context of two cases of criminal proceedings each against a person established in belgium and a french employment agent for entertainers established in france, who are charged with having infringed the provisions of articles 6 and 20 of the belgian arrete royal of 28 november 1975 relating to the operation of fee-charging employment agencies for entertainers.

3 It provides that, ' ' the operation of a fee-charging employement agency for entertainers shall be subject to the grant of a licence by the minister responsible for employment ' ', and that, ' ' foreign employment agencies for entertainers may not, in the absence of a reciprocal convention between belgium and their country, place anyone in employment in belgium except through a fee-charging employment agency holding a licence ' '.

4 In each of the two cases the first accused is charged with having, for the purpose of engaging entertainers, resorted to a fee-charging employment agency situated in france the operator of which does not hold a licence in belgium, and the second accused is charged with having placed persons in employment in that state without acting through an agency holding a licence in belgium.

5 The accused pleaded that the aforementioned provisions of national law were incompatible with the treaty in that they restricted the freedom to provide services referred to in articles 52, 55, 59 and 60.

6 The cases were joined for the purpose of the oral procedure, and the joinder should be maintained for the purpose of the judgment.

7 Since the activity at issue in these proceedings consists in the provision of services, the consideration of the questions raised by the national court must primarily start from a consideration of the provisions of the treaty relating to ' ' services ' '.

8 The first question asks whether the activities of fee-charging employment agencies for entertainers are classifiable in group 839 of the isic under the term ' ' employment agencies ' '.

9 If that question is answered in the affirmative, it is then asked whether the activities of the said employment agencies have in fact been properly liberalized by council directive 67-43-eec of 12 january 1967.

10 If the preceding question is answered in the affirmative, the national court ' s third question asks whether article 62 of the treaty authorizes a member state to re-enact discriminatory provisions which were in force previously in its legislation without making them more discriminatory.

11 Finally, if it is found that the aforesaid employment agencies are not classifiable in group 839, the national court ' s fourth question asks whether the court of justice confirms the interpretation according to which they fall within group 842 ' ' which has not yet been liberalized ' '.

12 Adopted by the council pursuant to articles 54 and 63 of the treaty and the general programme for the abolition of restrictions on freedom to provide services adopted by the council on 18 december 1961 ( official journal, english special edition, second series ix. Resolutions of the council and of the representatives of the member states, p. 3 ), the directive of 12 january 1967 concerns the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with certain groups of the ' ' international standard industrial classification of all economic activities ' ' ( isic ) published by the statistical office of the united nations.

13 In listing in annexes i to iv the activities liberalization of which was to be gradually attained during the transitional period in accordance with the timetable laid down by the provisions of title v, the general programme adopted the aforesaid isic for each activity or group of activities, so that the isic forms an integral part of the community measures at issue.

14 The first question seeks definition of the classification of the activities concerned with regard to group 839 of the isic.

15 The isic defines group 839 of major group 83, division 8 ( ' ' services ' ' ) as a residuary group, concerning ' ' business services not elsewhere classified ' '.

16 The detailed version of the isic which was adopted in 1964 expressly states that although employment agencies come within that group, theatrical and radio employment is excluded from it.

17 That version places ' ' casting bureaus ' ' under group 841 in the sector of motion pictures and allied services, and services ' ' such as theatrical employment agencies ' ' under group 842 in the area of theatres and related services.

18 Accordingly, fee-charging employment agencies for entertainers are not classifiable in group 839 of the isic under the term ' ' employment agencies ' '.

19 It emerges from questions 2 and 4 that the national court raised the issue of the classification of the activities concerned in the context of the isic only in order to determine whether those activities have been liberalized within the meaning of the provisions of article 59 of the treaty on freedom to provide services.

20 It may be deduced from the words ' ' not yet... Liberalized ' ' which appear at the end of question 4 that the national court asked that question on the assumption that, even after the transitional period, the liberalization of those activities can be held to have been achieved only in so far as it is provided for by a community measure such as the aforementioned council directive 67-43-eec.

21 In the field of judicial co-operation under article 177 between national courts and the court of justice, which are required to make direct and complementary contributions to the application of community law in a uniform manner in all the member states, the court may extract from the wording of the questions formulated by the national court, having regard to the particulars given by the latter and especially to the general question which it raised as to whether ' ' the arrete royal at issue conforms to the treaty of rome ' ', those elements of community law which are necessary for that court to be able to resolve in accordance with community law the legal problem which it has before it.

22 Therefore, it is necessary in the present case to consider whether and to what extent the activities in question have been liberalized within the meaning of articles 59 to 66 of the treaty, even in the absence of a community measure adopted by the council such as the aforesaid directive.

23 This question must be resolved with reference to the whole of the chapter relating to services, taking account, moreover, of the provisions relating to the right of establishment to which reference is made in article 66.

24 The first paragraph of article 59 of the treaty 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... ' ' Of the community.

25 In laying down that freedom to provide services shall be attained by the end of the transitional period, that provision, interpreted in the light of article 8 ( 7 ) of the treaty, imposes an obligation to attain a precise result, the fulfilment of which had to be made easier by, but not made dependent on, the implementation of a programme of progressive measures.

26 It follows that the essential requirements of article 59 of the treaty, which was to be implemented progressively during the transitional period by means of the directives referred to in article 63, became directly and unconditionally applicable on the expiry of that period.

27 Those essential requirements, which lay down the freedom to provide services, abolish all discrimination against the person providing the service by reason of his nationality or the fact that he is established in a member state other than that in which the service is to be provided.

28 Taking into account the particular nature of certain services to be provided, such as the placing of entertainers in employment, specific requirements imposed on persons providing services cannot be considered incompatible with the treaty where they have as their purpose the application of professional rules, justified by the general good or by the need to ensure the protection of the entertainer, which are binding upon any person established in the said state, in so far as the person providing the service is not subject to similar requirements in the member state in which he is established.

29 However, when the pursuit of the employment agency activity at issue is made subject in the state in which the service is provided to the issue of a licence and to supervision by the competent authorities, that state may not, without failing to fulfil the essential requirements of article 59 of the treaty, impose on the persons providing the service who are established in another member state any obligation either to satisfy such requirements or to act through the holder of a licence, except where such requirement is objectively justified by the need to ensure observance of the professional rules of conduct and to ensure the said protection.

30 Such a requirement is not objectively justified when the service is provided by an employment agency which comes under the public administration of a member state or when the person providing the service is established in another member state and in that state holds a licence issued under conditions comparable to those required by the state in which the service is provided and his activities are subject in the first state to proper supervision covering all employment agency activity whatever may be the member state in which the service is provided.

31 The belgian government argues that the employment agency activity in question comes under the provisions of convention no 96 of the international labour organization concerning fee-charging employment agencies, revised at geneva on 1 july 1949, which allows measures of control over such agencies to be adopted by the competent authorities.

32 In the submission of the belgian government, that convention, which was ratified in belgium by the law of 3 march 1958, is ' ' strictly observed by the arrete royal of 28 november 1975, which lays down as a general principle that it shall be prohibited to operate fee-charging employment agencies ( article 2 ) and which allows only one ' exception ' to that general principle, which relates exclusively to fee-charging employment agencies for entertainers on the express condition that they shall be conducted in accordance with the strict legal conditions stipulated ' '.

33 The aforementioned international convention lays down the general principle of the prohibition of fee-charging employment agencies conducted with a view to profit, and for that purpose article 3 ( 1 ) thereof provides that such agencies ' ' shall be abolished within a limited period of time determined by the competent authority ' '.

34 Moreover, article 5 ( 1 ) of the convention provides that, ' ' exceptions to the provisions of... Article 3 of ( the ) convention shall be allowed by the competent authority in exceptional cases in respect of categories of persons, exactly defined by national laws or regulations, for whom appropriate placing arrangements cannot conveniently be made within the framework of the public employment service.

35 Thus, since, the maintenance of fee-charging employment agencies does not correspond to an obligation under convention no 96, the belgian government cannot rely on that convention in order to set aside the provisions of the treaty in the field of freedom to provide services.

36 Consequently, obligations under convention no 96 cannot be relied upon as a ground for not applying the provisions of community law in the sector under consideration.

37 Furthermore, nothing in the convention prevents a member state which makes use of the exception provided for in article 5 from applying that provision to persons providing services established in another member state in such a way as to comply with the requirements of article 59 of the treaty as stated above.

38 Moreover, it emerges even from article 20 of the belgian arrete of 28 november 1975 that foreign employment agencies for entertainers may, where there is a reciprocal convention between belgium and their country, place persons in employment in belgium without acting through a fee-charging employment agency holding a belgian licence.

39 For all these reasons, the answer should be that when the pursuit of the activity of fee-charging employment agencies for entertainers is made subject in the state in which the service is provided to the issue of a licence, that state may not impose on the persons providing the service who are established in another member state any obligation either to satisfy that requirement or to act through a fee-charging employment agency which holds such a licence when the service is provided by an employment agency which comes under the public administration of a member state or when the person providing the services holds in the member state in which he is established a licence issued under conditions comparable to those required by the state in which the service is provided and his activities are subject in the first state to proper supervision covering all employment agency activity whatever may be the member state in which the service is provided.

Costs

40 The costs incurred by the belgian government and the commission of the european communities, which submitted observations to the court, are not recoverable.

41 As these proceedings are in the nature of a step in the criminal proceedings pending before the national court, costs are a matter for that court.

On those grounds,

The court,

In answer to the questions referred to it by the tribunal de premiere instance de tournai by judgments of 21 march 1978, hereby rules:

1 Fee-charging employment agencies for entertainers are not classifiable in group 839 of the international standard industrial classification under the term ' ' employment agencies ' '.

2 The essential requirements of article 59 of the treaty, which was to be implemented progressively during the transitional period by means of the directives referred to in article 63, became directly and unconditionally applicable on the expiry of that period.

3 When the pursuit of the activity of fee-charging employment agencies for entertainers is made subject in the state in which the service is provided to the issue of a licence, that state may not impose on the persons providing the service who are established in another member state any obligation either to satisfy that requirement or to act through a fee-charging employment agency which holds such a licence when the service is provided by an employment agency which comes under the public administration of a member state or when the person providing the services holds in the member state in which he is established a licence issued under conditions comparable to those required by the state in which the service is provided and his activities are subject in the first state to proper supervision covering all employment agency activity whatever may be the member state in which the service is provided.