1.

The loading and unloading of ships in ports was once the job of dockers usually working only intermittently and under harsh conditions. As a result of their struggle to improve those conditions, and the support of a number of well-organised trade unions, many Member States adopted specific rules to regulate that employment relationship.

2.

Common to the various bodies of State legislation so enacted was the fact that they reserved those tasks exclusively to dockers forming part of a clearly defined pool (‘recognised’ dockers, according to the term predominantly used in these cases). It was these dockers that undertakings providing port services were necessarily obliged to use.

3.

Cargo handling and all other dock duties have changed in line with developments in technology but the employment legislation which, in various guises, led to the ‘monopoly’ exercised by recognised dockers is, to a greater or lesser extent, still in place in certain Member States. ( 2 )

4.

In 2014, ( 3 ) the Court held the Spanish employment legislation on dock work, which was based on the traditional model in this field, to be incompatible with the freedom of establishment provided for in Article 49 TFEU.

5.

Both before and after that judgment, the EU legislature was unable, despite the Commission’s attempts, to harmonise those aspects of the rules governing the provision of port services that deal with labour relations and the social conditions of dock workers. ( 4 )

6.

These two references for a preliminary ruling will enable the Court to determine whether the Belgian legislation (which continues to apply special rules of employment to the recruitment of dockers) is compatible with the freedom of establishment. In the judgment it gives, it will at the same time be able to lay down additional criteria for ascertaining whether the rules governing dock workers are subject to the requirements of EU law, in particular, to the freedom of establishment. Ports are not areas that sit outside the law. ( 5 )

7.

Article 49 TFEU provides:

‘Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital’.

8.

The following are now the material articles of this Law, which has been amended on successive occasions:

‘Article 1

No person may order dock work in port areas to be performed by any workers other than recognised dockers.

Article 2

The application of this Law shall be governed by the definition of port areas and dock work as established by the King pursuant to Articles 35 and 37 of the Law of 5 December 1968 on collective labour agreements and Joint Committees.

Article 3

The King shall determine the conditions and detailed rules for the recognition of dock workers, on the advice of the Joint Committee responsible for the port area concerned.

…

Article 3a

On the advice of the Joint Committee responsible for the port area concerned, the King may compel employers employing dock workers in that area to join an employers’ organisation approved by him which, in its capacity as agent, fulfils all of the obligations incumbent on employers employing dock workers under the legislation on individual and collective work and under social security legislation.

In order to be approved, the employers’ organisation referred to in the preceding paragraph must already have the majority of the employers in question among its members’.

9.

Article 1 provides:

‘A joint committee, to be known as the “Joint Ports Committee” (which shall be responsible for workers in general and their employers), is hereby established for the benefit of:

All workers and their employers who, in port areas:

…’

10.

This originally imposed an obligation to be recognised on all dockers carrying out dock work within the meaning of the 1973 Royal Decree. Following recognition, such dockers would be assigned to the general pool or to logistics.

11.

The Royal Decree of 5 July 2004 was amended by the Royal Decree of 10 July 2016, adopted following the letter of formal notice issued to Belgium by the Commission on 28 March 2014. ( 9 )

12.

As a result of that amendment, the new version of Royal Decree of 5 July 2004 provides:

‘Article 1

(1)   In each port area, dock workers shall be recognised by the jointly constituted committee, hereinafter referred to as ‘the Administrative Committee’, established within the Joint Subcommittee responsible for the port area concerned.

The Administrative Committee shall be comprised of:

The provisions of the Royal Decree of 6 November 1969 determining the general rules of operation of Joint Committees and Joint Subcommittees, and the special rules laid down in Article [10] of this Royal Decree shall apply to the operation of the Administrative Committee.

(2)   An application for recognition shall be made in writing to the competent Joint Subcommittee using a template provided for that purpose.

The application shall indicate whether it is made with a view to employment inside or outside the pool.

(3)   By way of derogation from the first subparagraph of paragraph (1), in the case of workers who carry out work, within the meaning of Article 1 of the [Royal Decree of 12 January 1973], on sites where goods, in preparation for their onward distribution or dispatch, undergo processing indirectly conferring demonstrable added value, and who hold a “logistics workers’” safety certificate, that safety certificate shall count as recognition within the meaning of the [Law of 8 June 1972].

A safety certificate shall be requested by an employer who has signed an employment contract with a worker for the performance of activities such as those referred to in the preceding paragraph and shall be issued on presentation of the worker’s identity card and employment contract. The details of this procedure shall be laid down by collective labour agreement.

Article 2

(1)   The dock workers referred to in the first subparagraph of Article 1(1) shall, on being granted recognition, be included, or not, in the dock workers’ pool.

Recognition with a view to inclusion in the pool shall be based on the demand for labour.

(2)   Dock workers included in the pool shall be recognised for a fixed or indefinite period of time.

The detailed rules governing the duration of the recognition shall be laid down by collective labour agreement.

(3)   Dock workers not included in the pool shall be engaged under an employment contract as provided for in the Law of 3 July 1978 on employment contracts.

The duration of the recognition shall be confined to the duration of the employment contract.

…

Article 4

(1)   Recognition as a dock worker for the purposes of the first subparagraph of Article 1(1) shall be subject to the following conditions:

[The dock worker must]

…

…

(2)   Recognition of a dock worker shall be valid in each port area as defined by the King pursuant to Articles 35 and 37 of the Law of 5 December 1968 on collective labour agreements and Joint Committees.

The terms and conditions under which a dock worker may be employed in a port area other than that in which he is recognised shall be laid down by collective labour agreement.

The employers’ organisation appointed as agent under Article 3a of the [1972 Law] shall continue to act as agent in the event that the dock worker is employed outside the port area in which he has been recognised.

(3)   Dock workers who are able to demonstrate that they meet equivalent conditions in respect of dock work in another Member State of the European Union shall no longer be subject to the same conditions under this Royal Decree.

(4)   Applications for recognition and renewal shall be made to, and processed by, the Administrative Committee.

…

Article 13/1

(1)   the employment contract provided for in the second subparagraph of Article 2(3) shall be concluded for an indefinite period;

(2)   the employment contract provided for in the second subparagraph of Article 2(3) shall be concluded for a minimum period of 2 years;

(3)   the employment contract provided for in the second subparagraph of Article 2(3) shall be concluded for a minimum period of 1 year;

(4)   the employment contract provided for in the second subparagraph of Article 2(3) shall be concluded for a minimum period of 6 months.

…

Article 15/1

For the purposes of this Royal Decree:

…’

13.

Katoen Natie Bulk Terminals NV (‘Katoen’) ( 10 ) and General Services Antwerp NV (‘General Services’) ( 11 ) are two companies established in Belgium whose businesses, at home and abroad, include port operations.

14.

On 5 September 2016, those two companies challenged the Royal Decree of 10 July 2016 before the Raad van State (Council of State, Belgium). They claimed that it should be annulled because, in their opinion, it infringed the fundamental freedoms of the European Union internal market and the rules on free competition, ( 12 ) and, although appearing to seek to liberalise the labour market, it actually reaffirmed or introduced up to seven unnecessary and disproportionate restrictions in the rules on dock duties.

15.

Prominent among those restrictions were the following:

16.

Those restrictions, they went on to say, went beyond what was necessary in order to attain the objectives pursued in the general interest and are unjustified. The fact that the European Commission terminated the infringement proceedings for political reasons and reserved the right to keep the situation under review, does not diminish the incompatibility of the Royal Decree with EU law.

17.

The Belgian Government denies that the Royal Decree of 10 July 2016 infringes the freedom of establishment or other freedoms. Neither the letter of formal notice from the Commission nor the case-law of the Court of Justice cited by the applicant companies provides sufficient evidence of any infringement. The Commission terminated the proceedings not for political reasons but because the concerns it had expressed were addressed.

18.

In the opinion of the Belgian Government, there is no direct or indirect discrimination because all companies, whatever their place of establishment, are subject to the same rules. Companies from other Member States are treated in the same way as national companies.

19.

Finally, the Belgian Government submits that, if the restrictions complained of did exist (which it denies), the legislation on dock work, of which the Royal Decree of 10 July 2016 forms part, is necessary and proportionate, and sufficiently justified, since:

20.

It was in those circumstances that the Raad van State (Council of State) referred the following four questions to the Court for a preliminary ruling:

21.

Middlegate Europe is a transport undertaking established in Zeebrugge (Belgium) that is active throughout Europe. As part of its international road transport business, its workers use a tugmaster to place on the quay at the port of Zeebrugge, inter alia, trailers ready for shipment to the United Kingdom and Ireland.

22.

During an inspection carried out on 12 January 2011, the police compiled an official report against Middlegate Europe for infringement of Article 1 of the 1972 Law (performance of dock work by a non-recognised dock worker). By decision of 17 January 2013, an administrative fine of EUR 100 was imposed on it.

23.

Middelgate Europe challenged that penalty before the arbeidsrechtbank te Gent, afdeling Brugge (Ghent Labour Court, Bruges Division, Belgium), which held the action to be unfounded. The arbeidshof te Gent (Higher Labour Court, Ghent, Belgium) also dismissed the appeal lodged against the judgment at first instance.

24.

Middlegate Europe lodged an appeal in cassation before the Hof van Cassatie (Court of Cassation, Belgium), claiming that Articles 1 and 2 of the 1972 Law infringe Articles 10, 11 and 23 of the Belgian Constitution (principle of equality and the freedom of commerce and industry enjoyed by undertakings).

25.

In those proceedings, the Hof van Cassatie (Court of Cassation) raised a question of constitutionality with the Grondwettelijk Hof (Constitutional Court, Belgium). The latter court considers it necessary, in order to be able to answer that question, to obtain a preliminary ruling from the Court of Justice, having had cited before it, both in favour and in opposition, legal grounds relating to the compatibility of domestic law with EU law.

26.

In particular, it has referred the following two questions for a preliminary ruling:

27.

Following the submission of observations by Katoen, the Belgian Government and the Commission, it was decided to join Cases C‑407/19 and C‑471/19.

28.

The hearing that was due to be held on 23 April 2020 was replaced by the questions for written response which the Court put to the parties and to which the latter replied.

29.

As the disputes which have given rise to these references concern situations with no cross-border element to them, one might ask [as, indeed, the Raad van State (Council of State) has] ( 13 ) whether the Court has jurisdiction to answer the questions referred for preliminary ruling.

30.

In principle, the provisions of the TFEU on the freedoms of movement, as well as the acts adopted in implementation thereof, cannot be applied to situations which are confined in all respects within a single Member State. ( 14 )

31.

By way of exception to that rule, the Court has held that, where the referring court makes a request for a preliminary ruling in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, the decision of the referring court that will be adopted following the Court’s preliminary ruling will also have effects on the nationals of other Member States, which justifies the Court giving an answer to the questions put to it in relation to the provisions of the Treaty on the fundamental freedoms, even though the dispute in the main proceedings is confined in all respects within a single Member State. ( 15 )

32.

In these cases, the referring court is under an obligation to justify the need for a preliminary ruling on interpretation from the Court. ( 16 ) The Raad van State (Council of State) has discharged that obligation inasmuch as it has stated that:

33.

I take the view, in the light of those considerations, that the Raad van State (Council of State) has adequately demonstrated that, despite the fact that the situation in question is purely internal, the dispute may exhibit a cross-border dimension sufficient to necessitate input from the Court in the form of a preliminary ruling.

34.

In Case C‑407/19, the Raad van State (Council of State) raises up to seven questions relating to Articles 49, 56, 45, 34, 35, 101 and 102 TFEU, whether or not read in conjunction with Article 106(1) TFUE. Those articles are cited with the aim of ascertaining whether the contested Belgian rules are compatible with them.

35.

However, the order for reference does not explain why an interpretation of all of those provisions of EU primary law is needed.

36.

This is true in particular of the free movement of goods and, to a lesser extent, the freedom to provide services and with the free movement of workers (the order contains only the odd reference to these two freedoms). The national court’s reasoning a quo centres on the freedom of establishment, which is understandable, given that the dispute concerns the restrictions which the Belgian rules on the recruitment of dockers entail for undertakings from other Member States that wish to establish themselves and provide services in Belgian ports. ( 17 )

37.

Neither does the order for reference contain explanations sufficient to enable the Court to interpret the competition rules applicable to undertakings (Articles 101 and 102 TFEU) or to public undertakings or undertakings enjoying special or exclusive rights (Article 106(1) TFEU) and to determine whether the national legislation at issue is compatible with those articles. ( 18 )

38.

I should add here that the Court has already examined the Belgian legislation on dock workers in the light of Article 106 TFEU in conjunction with Articles 101 and 102 TFEU, in the judgment in Becu and Others. ( 19 ) It held at that time that those provisions do not confer on individuals the right to oppose the application of legislation of a Member State which requires them to engage only recognised dock workers such as those referred to in the 1972 Law and to pay those dockers remuneration far in excess of the wages of their own employees or the wages they pay to other workers. ( 20 )

39.

Consequently, it follows from the content of the orders for reference that it is, in essence, Article 49 TFEU that falls to be interpreted, so as to determine whether it is infringed by national legislation exhibiting the characteristics described above. Account will also have to be taken of Article 45 TFEU, concerning the free movement of workers.

40.

The EU legislature did not harmonise the provision of port services until the adoption of Regulation 2017/352. ( 21 ) Previous attempts (in 2004 and 2007) to adopt directives in this field had met with failure, due in large part to the opposition of dockers’ trade unions to the introduction of self-handling. ( 22 )

41.

It was this arrangement for loading and unloading at ports, whereby these operations are carried out by the shipping company’s own workers (or by non-recognised workers engaged directly by the shipowners or the undertakings providing port services), that was provided for in the Commission’s proposal. ( 23 )

42.

As I have already noted, ( 24 ) Regulation 2017/352 excluded from its scope the core employment-related aspects of port services: Article 9(1) thereof states that that regulation ‘shall not affect the application of the social and labour rules of the Member States’. ( 25 ) It thus refrained from legislating on key aspects of the legal regime applicable to dockers. ( 26 ) It is for this reason that State rules in this field must be assessed in the light of EU primary law itself.

43.

An interpretation of Directive 2005/36/EC, concerning the recognition of professional qualifications, ( 27 ) might also be relevant, notwithstanding that it is not cited in the orders for reference.

44.

The two references (C‑407/19 and C‑471/19) are closely linked and it was for this reason that they were joined. However, the backgrounds against which they were made are different: the Grondwettelijk Hof (Constitutional Court) determines whether laws are compatible with the Belgian Constitution, while the Raad van State (Council of State) reviews the legality of provisions of lower rank than a law.

45.

Case C‑471/19 is concerned with the compatibility of two articles of the 1972 Law with Article 49 TFEU, but in the context of facts which occurred in 2011, when the Royal Decree of 5 July 2004 was in force without the amendments made to it in 2016.

46.

Thus, the Grondwettelijk Hof (Constitutional Court) asks about the compatibility with Article 49 TFEU (and Articles 15 and 16 of the Charter) of Articles 1 and 2 of the 1972 law in themselves and without regard to their regulatory implementation. ( 28 )

47.

In Case C‑407/19, the question of compatibility arises in relation to regulatory provisions introduced by the Royal Decree of 10 July 2016.

48.

I propose to look, in the first place, at the compatibility with Article 49 TFEU of the national law that restricts eligibility to be engaged to perform dock work to ‘recognised’ workers. I shall turn next to Articles 15 and 16 of the Charter. The application of the principle of equal treatment is covered by Article 49 TFEU and does not therefore need to be addressed separately.

49.

The issue here is the exercise of the right of establishment (Article 49 TFEU) of undertakings that wish to carry on activities in Belgian ports but want to use workers other than recognised dockers in order to do so. These alone, as I have already said, are authorised to carry out dock work.

50.

It is the Court’s settled case-law that any national measure which, albeit applicable without discrimination on grounds of nationality, prohibits, hinders or renders less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the Treaty constitutes a restriction within the meaning of Article 49 TFEU. ( 29 )

51.

The Belgian legislation does not directly discriminate on grounds of nationality, since it applies equally to Belgian undertakings and to undertakings from other Member States that wish to establish themselves and provide services in port areas. All of those undertakings, however, must all employ recognised dockers to carry out their activities and may not use their own (or any other non-recognised) workers.

52.

That rule therefore has adverse consequences for undertakings from other Member States that wish to establish themselves in Belgian port areas, since they do not have the freedom to hire workers to perform their tasks by other means. In the same way, it is liable to prevent or deter undertakings from locating themselves in Belgian ports in order to carry on a business activity there. ( 30 )

53.

The referring court is of the same opinion, as am I. It recognises that the obligation to recruit dockers from the dock worker pool on terms that are beyond the control of the port undertakings, and the obligation to join an organisation representing employers, have the effect of preventing or disincentivising the establishment of undertakings from other Member States in Belgian port areas. ( 31 )

54.

It is readily apparent from the judgment in Commission v Spain that that type of measure constitutes a restriction on the freedom of establishment. ( 32 ) I do not therefore see any need for me to comment further in this regard.

55.

Restrictions on the freedom of establishment that are applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining it. ( 33 )

56.

In its order, the referring court mentioned the same overriding reasons relating to the general interest that were cited by the Belgian Government in its observations. ( 34 ) They are:

57.

As regards port safety, the Court has recognised this as an overriding requirement in the general interest. ( 35 ) In this case, the reference to port safety is linked to the prevention of accidents, inasmuch as the activity in question is one that entails considerable risk.

58.

On the dangerous nature of dock work, the Belgian Government and the applicant undertakings put forward opposing views:

59.

While it is for the referring court to make a final adjudication on these arguments, I nonetheless do not discount the possibility that, even today, dock work continues to entail a level of risk sufficient to warrant a decision on the part of the authorities of a Member State to adopt rules to ensure safety within port perimeters.

60.

The International Labour Organisation (‘ILO’) has drafted a code of practice which highlights the dangerous nature of dock work. ( 38 ) While recognising the improvements that have been made in this field, it states that ‘port work is still regarded as an occupation with very high accident rates’. ( 39 )

61.

As an objective geared towards the prevention of accidents, port safety may be classified as an overriding requirement in the general interest. As such, it might justify restrictions on access to port work, including restrictions relating to the recruitment of the persons that carry out that work.

62.

On the protection of workers, the Court has also recognised this, in general, as one of the overriding reasons in the general interest that may warrant restrictions on the freedom of establishment. ( 40 )

63.

The Belgian Government cites protection of the working conditions of dock workers who are already recognised and form part of the pool, as opposed to those who have not benefited from such recognition and have not joined the pool. That argument does not strike me as being a sufficient basis on which to allow the protection of those workers to legitimise a restriction on the recruitment of dock workers and thus give preference to one group over the other, as provided for in the 1972 Law.

64.

Some support for this type of measure might be found in Convention 137 on Dock Work, adopted in Geneva on 25 June 1973 under the auspices of the ILO (‘Convention No 137’), ( 41 ) Article 3(2) of which gives registered dock workers priority of engagement for the performance of dock work. The Convention contains provisions protecting registered dockers of this type.

65.

Nonetheless, Convention No 137 is an ILO technical convention the status of which is provisional because it has been ratified by only 25 countries (in fact, only 24, following its termination by the Netherlands in 2006), including 11 EU Member States, of which Belgium is not one. ( 42 ) It is also a convention that is no longer up to date, on account of technological developments in dock work, and whose mechanism for the registration of dock workers has at times operated as a reservation system or occupational monopoly advantageous to only one group of workers. ( 43 )

66.

The European Union is not a party to Convention No 137 and the Court did not comment on the impact of that convention on EU law in the judgment in Commission v Spain, ( 44 ) despite the fact that the Kingdom of Spain cited it as justification for its national rules on the engagement of dock workers, which were ultimately declared incompatible with Article 49 TFEU. The provisional status of Convention No 137 also explains why, unlike other ILO conventions, ( 45 ) its content has not formed the subject of an agreement which has been concluded between social partners at international level and then incorporated into an EU directive.

67.

I infer from the foregoing that limiting the recruitment of dockers by requiring them to be recognised might be justifiable only in the interests of protecting port safety, that is to say in order to prevent accidents within the port perimeter, given the level of risk present there.

68.

As regards the need to be able to secure labour for the performance of dock work, if this were recognised as being an overriding requirement, it would not necessarily call for a closed quota system such as that currently under analysis. That need could reliably be met by using port employment agencies, temporary work agencies or other arrangements less rigid than the system mentioned above.

69.

As well as having to be justified by an overriding requirement, a national measure restricting the right of establishment is acceptable only if it observes the principle of proportionality. From this point of view, its content must be essential to securing attainment of the objective of port safety, meaning that the same result cannot be achieved by less stringent but equally effective provisions. ( 46 )

70.

Articles 1 and 2 of the 1972 Law simply establish the recognition mechanism as an instrument for controlling and limiting the engagement of dockers. They do not, however, set out the detailed rules for the implementation of that mechanism.

71.

In my opinion, those two provisions, considered in isolation, could be recognised as satisfying the criterion of proportionality. Prior recognition of dockers as a condition of their engagement might, per se, be suitable for protecting the safety of dock workers. ( 47 )

72.

Everything depends, however, on the configuration of the detailed rules for the grant of recognition. Rules based on objective, non-discriminatory criteria that are known in advance and that allow dockers from other Member States to demonstrate that, in their State of origin, they meet requirements equivalent to those applied to national dock workers would be permissible. ( 48 )

73.

Recognition enabling dockers to be engaged in Belgian ports could be extended to all those having completed equivalent prior professional training ( 49 ) in their country of origin that adheres to the guidelines set out by the ILO, ( 50 ) for example. Such training would culminate in the acquisition of a professional training qualification entitling its holder to perform dock work. ( 51 )

74.

In the judgment in Commission v Spain, ( 52 ) the Court held that there were options less restrictive of the freedom of establishment than the obligations laid down by the national legislation, ( 53 ) which included the obligation to prioritise the engagement of workers provided by a particular public limited company.

75.

At that time, the Court recognised the alternative means of protecting the safety of dock workers which had been suggested by the Commission as being less restrictive, namely that: ‘… it is for the cargo-handling undertakings themselves, since they have the freedom to engage permanent or temporary workers, to manage the employment agencies required to provide them with labour and organise the training to be delivered to those workers, or the option of creating a pool of workers managed by private undertakings operating as temporary work agencies and providing cargo-handling undertakings with workers’. ( 54 )

76.

A further alternative means of ensuring port safety might be to provide that, in order to be recognised as suitable for engagement, dock workers must have sufficient professional training, as attested to, where appropriate, by certificates of professional competence.

77.

Articles 1 and 2 of the 1972 Law would not pass the proportionality test, however, if the detailed rules for their implementation gave rise to a monopoly on the recognition of dockers as a condition of their engagement which is controlled by the trade union organisations and employers’ associations in port areas.

78.

This was the case with the Belgian rules adopted in implementation of the 1972 Law, which the Commission considered to be incompatible with EU law and as a result of which it brought an action for failure to fulfil obligations. ( 55 ) Those rules (in particular, the Royal Decree of 5 July 2004) created a mechanism for the recognition of dockers which did not comply with the principle of proportionality. More specifically, it was not essential for improving port safety, an objective which could have been attained by means less restrictive of the right of establishment.

79.

Rather than undertaking an exhaustive analysis, ( 56 ) I shall confine myself to highlighting a number of aspects of that scheme which disproportionately restricted the right of establishment and failed to comply with Article 49 TFEU.

80.

In the first place, the model in question operated a closed shop for dockers in which trade union organisations enjoyed a privileged position. Recognition of the right of dockers to enter the general or the logistics pool was granted by a committee in each port that was comprised in equal parts of trade union representatives and the local employers’ association.

81.

In practice, ( 57 ) it seems that the trade union organisations exercised full control over the mechanism for the recognition of dockers in each port, so much so that applicants either had to be proposed by the trade unions or join them if they were put forward by the employers’ association. ( 58 )

82.

In the second place, the corporatism of the model was reinforced by the monopoly that Article 3a of the 1972 Law conferred on local employers’ associations in respect of the engagement of dockers. ( 59 ) Each port had only one employers’ organisation, which most employers had to join, membership becoming almost compulsory in practice.

83.

This prevented dock workers from being directly engaged by the undertakings that required their services. A triangular relationship was created in which the local employers’ association enforced the employment rules prevailing in the port in question.

84.

In the third place, the closed shop was reinforced by the collective agreements negotiated in each port between the trade unions and the local employers’ association. The product of those negotiations was the adoption, in each port, of the so-called ‘codices’, that underpinned control over the mechanism for the engagement of dockers. Those arrangements operated as a barrier to the mobility of dock workers, even between one port and another, since recognition was obtained for the right to work in a single port.

85.

In the fourth place, the trade unions and employers’ organisations monopolised the training courses that applicant dockers had to complete. The training to be a dock worker was delivered by the same organisations that controlled the decisions on recognition. ( 60 )

86.

Finally, the Royal Decree of 12 January 1973, in implementing the 1972 Law, laid down a material and geographical definition of port areas that was disproportionate:

87.

The restrictive effect of that broad material and geographical definition of dock work increased the restrictive effect of the measure provided for in Articles 1 and 2 of the 1972 Law.

88.

In short, if those two articles were assessed in their more extensive legislative context (that comprised of the Royal Decree of 5 July 2004 and the provisions predating it), as described above, the recognition of dockers, as an instrument for controlling and limiting the engagement of such workers, could not be regarded as being compatible with Article 49 TFEU. This would be the case because a closed shop controlled by the trade unions and employers’ organisation present in each port entails a disproportionate limitation of the freedom of establishment enjoyed by undertakings from other Member States.

89.

On the other hand, detailed rules on recognition based on objective, non-discriminatory criteria which are known in advance and allow dockers from other Member States to demonstrate that, in their State of origin, they meet requirements equivalent to those applied to national dock workers, would, as I have already stated, be permissible.

90.

A restriction within the meaning of Article 49 TFEU affects, by extension, the freedoms provided for in Article 15(2) (freedom of establishment) and Article 16 (freedom to conduct a business) of the Charter. Those two provisions relate in particular to Article 49 TFEU. ( 63 )

91.

The outcome of an analysis of the compatibility of the Belgian provision limiting the engagement of dockers with Articles 15(2) and 16 of the Charter would therefore be the same as that of the analysis I have just carried out in relation to Article 49 TFEU.

92.

In the event that the answer to its first question is in the affirmative, the Grondwettelijk Hof (Constitutional Court) wishes to ascertain whether it may maintain the effects of Articles 1 and 2 of the 1972 Law in order to avoid legal uncertainty and social discontent while the Belgian legislature brings its legislation into line with EU law.

93.

As I have already submitted, Articles 1 and 2 of the 1972 Law do not, per se, give rise to a restriction contrary to Article 49 TFEU and Articles 15(2) and 16 of the Charter. On that basis, there would be no need to address the second question referred for a preliminary ruling.

94.

The outlook is different if account is taken of the legislative corpus comprised of those articles and the rules implementing them (the Royal Decree of 5 July 2004), which I consider to be incompatible with EU law. However, that body of legislation is no longer in force, the Belgian State having amended it, by way of the Decree of 10 July 2016, in such a way as to meet the Commission’s requirements.

95.

The question could be reformulated so as to confine it to the temporary maintenance of the effects of the body of legislation comprised of Articles 1 and 2 of the 1972 Law and the detailed rules for its implementation that are laid down in the Royal Decree of 10 July 2016. It would then have to be assumed that the new detailed rules are, like those contained in the Royal Decree of 2004, also contrary to Article 49 TFEU, an assumption that I shall examine below.

96.

The Court may, exceptionally and for overriding considerations of legal certainty, grant a provisional suspension of the ousting effect which a rule of EU law has on national law that is contrary thereto. ( 64 )

97.

The Court has stated that that prerogative, in addition to being one which it alone may exercise, will empower national courts to temporarily suspend the application of the principle of primacy and maintain the effects of a national rule that is contrary to EU law, depending on the circumstances of the case. It is essential that there should be an overriding requirement in the general interest that is capable of justifying such a suspension, and that strict conditions are observed. ( 65 )

98.

The Court has in several judgments authorised a suspension of the ousting effect inherent in the principle of primacy, thus temporarily maintaining the effects of national provisions contrary to procedural rules under EU environmental law (in particular, those laying down obligations to carry out environmental impact assessments). ( 66 )

99.

In Winner Wetten ( 67 ) (concerning German rules on the monopoly on sports betting), on the other hand, the infringement of EU law was substantive. The Court nonetheless implicitly left open the door to the possibility ( 68 ) of suspending the effects of its judgment, citing in that regard the analogy with the case-law on maintaining the effects of an EU act that has been annulled or declared invalid (even though the temporary maintenance of the German legislation was not justified by the need to protect the social order and citizens from the risks connected with games of chance). ( 69 )

100.

I, like the Commission, take the view that in this case there are also insufficient reasons for temporarily maintaining the effects of the body of Belgian legislation. Neither the alleged legal uncertainty nor any social discontent cited by the referring court warrant it.

101.

The Belgian Government also refers to the case-law on temporarily limiting the effects of preliminary rulings given by the Court on past legal situations.

102.

That case-law (of which the referring court makes no mention) is not applicable here, since the two essential elements which it requires, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties, are not present. ( 70 )

103.

Good faith cannot be relied on when the Belgian legislation on dock work has been the subject of scrutiny and an action for failure to fulfil obligations brought by the Commission, which the latter admits to having shelved for political reasons. ( 71 ) What is more, following the judgment in Commission v Spain, the compatibility of that legislation with Article 49 TFEU was more than doubtful.

104.

There would not appear to be any risk of serious difficulties either: the discontent felt by recognised dockers (even if expressed in the form, cited by the Belgian Government, of potential strikes) in connection with the amendments necessary to correct a recruitment system that operates to their benefit but is contrary to EU law, does not represent such a risk.

105.

By its seven questions, the Raad van State (Council of State) asks the Court to provide an interpretation indicating whether, inter alia, Articles 45 and 49 TFEU ( 72 ) are compatible with a number of aspects of the legislation, established by the Royal Decree of 10 July 2016, implementing the 1972 Law.

106.

As I have already stated, on 28 March 2014, the Commission instituted proceedings for failure to fulfil obligations against Belgium because, in its opinion, the national rules on the organisation of dock work were, in certain essential respects, contrary to EU law, in particular the freedom of establishment.

107.

According to the referring court, no amendments were made either to the 1972 Law or to its essential principles following the letter of formal notice issued by the Commission. The Belgian State did, however, adopt the Royal Decree of 10 July 2016 in response to the objections raised by the Commission and the latter decided, for political reasons, ( 73 ) to terminate the proceedings on 17 May 2017.

108.

The principal elements of the new system for the recruitment of dockers ( 74 ) are as follows:

109.

This method of recruiting dock workers continues to limit the freedom of establishment enshrined in Article 49 TFEU. The considerations I set out in my analysis of the first question in Case C‑471/19 are fully applicable to the new method.

110.

Although expressed in a different context, the Court’s arguments in the judgment in AGET Iraklis ( 76 ) (concerning public intervention in connection with collective redundancies by undertakings in the port sector) may be extrapolated, mutatis mutandis, to the measures provided for in the Royal Decree of 10 July 2016.

111.

Those measures, too, constitute ‘a significant interference in certain freedoms which economic operators generally enjoy […], to enter into contracts with workers in order to be able to carry out their activities or the freedom, for their own reasons, to bring the activity of their establishment to an end’. ( 77 )

112.

Also applicable to those measures are the words contained in the judgment in Commission v Spain, inasmuch as these are measures that ‘… compel foreign cargo-handling undertakings to make an adjustment which may trigger financial consequences and operational disruptions such as to deter undertakings from other Member States from establishing themselves in […] ports’. ( 78 )

113.

In one respect, that scheme of legislation may also impede the free movement of dock workers from other Member States who wish to be hired in Belgian ports, thus infringing Article 45 TFEU. The case-law on that freedom takes the same approach to the compatibility of restrictive national measures as that taken to the freedom of establishment.

114.

According to the Court, all of the provisions of the TFEU relating to the freedom of movement of persons are intended to facilitate the pursuit by EU citizens of occupational activities of all kinds throughout the European Union. Those provisions preclude measures which might place them at a disadvantage when they wish to pursue an economic activity in another Member State. ( 79 )

115.

Accordingly, provisions which preclude or deter a national of a Member State from leaving his country of origin to exercise his right to freedom of movement constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned. ( 80 )

116.

The principle of equal treatment enshrined in Article 45 TFEU prohibits not only overt discrimination based on nationality but all covert forms of discrimination which, by applying other distinguishing criteria, in fact lead to the same result. Unless objectively justified and proportionate to the aim pursued, a provision of national law – even if it applies regardless of nationality – must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the migrant worker at a particular disadvantage. ( 81 )

117.

The measures identified by the referring court in its seven questions (with the exception of that referred to in the fifth question), although not directly discriminatory on grounds of nationality, may hinder or make less attractive the exercise of the freedom of intra-Community movement enjoyed by dock workers from other countries.

118.

The overriding requirements in the general interest cited by the Belgian State in order to justify those measures, which derogate from the general employment legislation applied in that country, are port safety and protection of the rights of dock workers. ( 82 )

119.

Although, as I have already explained, those two interests have been recognised by the Court in its case-law as being overriding requirements, it must be determined whether the rules laid down in the Royal Decree of 10 July 2016 observe the principle of proportionality, that is to say whether they are necessary in order to realise those grounds of general interest and whether there are any less restrictive alternatives for doing so.

120.

I shall now analyse each of the measures indicated by the Raad van State (Council of State) in the light of the information which it itself provides. Where that information is insufficient, I shall simply set out the minimum criteria necessary to enable an assessment of proportionality to be carried out by that court, which has before it all of the information it needs in order to give an exhaustive ruling.

121.

Article 1 of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, provides that, in each port area, dock workers must be recognised by a Joint Administrative Committee comprised in equal parts of representatives of the employers’ association and the trade unions present in that area.

122.

The most prominent features of the mode of operation of those committees are as follows:

123.

The applicant undertakings argue that, in the context of the recognition of dock workers not engaged in logistics activities, this system includes a number of elements that are incompatible with EU law, namely:

124.

The Administrative Committee, which confers on dockers recognition of entitlement to work inside or outside the pool in each port, effectively grants authorisation to pursue an economic activity as a dock worker.

125.

Article 49 TFEU does not require specific guarantees in relation to the creation and operation of a committee that takes decisions on the pursuit of an occupational activity. However, since such a decision is, in itself, a restriction on the freedom of establishment, the principle of proportionality will be observed only if that committee exercises its discretion in accordance with transparent and objective criteria aimed at ensuring that it does not perform its duties arbitrarily. ( 83 )

126.

A committee that issues such authorisations (recognitions) must also preserve its impartiality, which may be called into question in the case where some of its members, having a right to cast a dissenting vote, are operators on the market concerned or representatives thereof. ( 84 ) The independence of that committee vis-à-vis the aforementioned operators is a guarantee against conflicts of interest when it comes to taking decisions. ( 85 )

127.

The composition and mode of operation of the Administrative Committees that decide on applications for recognition made by dock workers are, as I have just explained, controlled by the operators that already have a presence in the ports, as represented by workers’ trade unions and the local employers’ association.

128.

Their composition being as it is, it is unlikely that their members will not to be affected by conflicts of interest preventing them from being able to adjudicate objectively, impartially and non-arbitrarily on applications for recognition made by new dockers.

129.

Although the final assessment falls to the referring court, which has all of the relevant information, it is difficult to conceive that such conduct on the part of Joint Committees when adjudicating on the recognition of dockers is consistent with the principle of proportionality.

130.

There are, in addition, other elements of the Administrative Committee system which bear out the foregoing assessment.

131.

The requirement of unanimity in the adoption of decisions ( 86 ) strengthens the control exercised by those operators already present in the ports, in particular trade unions, since it gives them a right to veto the admission of new dockers. According to the applicant companies, that right of veto extends to the withdrawal of recognition, thus effectively guaranteeing unionised dockers, who account for virtually the entire dock workforce, a job for life.

132.

That same assessment is borne out by the fact that the criterion used to determine whether the pool should be opened up to new workers is a purely economic one: the demand for labour. That factor, as I shall explain below, cannot be regarded as an overriding requirement in the general interest justifying a restriction on the freedom of establishment.

133.

The Belgian Government states, however, that the Administrative Committees have to apply the demand for labour criterion in order to ensure that the pool system is economically sustainable, and goes on to say that, since the adoption of the Royal Decree of 10 July 2016, undertakings have had the option of engaging recognised non-pool workers.

134.

It is my view, however, that:

135.

A final factor that supports the assessment that the Administrative Committee system lacks proportionality has to do with the procedure operated by the Committees and the remedies against their decisions or absence thereof. The existence of an effective means of judicial review is called for by Article 47 of the Charter and is relevant in determining whether a restriction on the freedom of establishment passes the proportionality test. ( 88 )

136.

According to the referring court, there is no prescribed time limit within which the Administrative Committees must adjudicate on applications. They make their decisions in accordance with a procedure without fixed time limits, without specific procedural guarantees and without a clear obligation to state reasons, ( 89 ) thus creating significant uncertainty among applicants. ( 90 )

137.

What is more, their decisions on recognition are open to judicial review only before the Tribunal du travail (Labour Court). ( 91 ) It is for the Raad van State (Council of State) to verify whether, account being taken of national law as a whole, those decisions are amenable to effective judicial review.

138.

In the light of the foregoing considerations, taken as a whole, I am minded to propose that the first question be answered in the affirmative.

139.

Article 4(1), points 2, 3, 6 and 8, of the Royal Decree of 5 July 2004, as amended or introduced, as the case may be, by the Royal Decree of 10 July 2016, requires, as conditions of recognition as a docker, that a worker must:

140.

The Raad van State (Council of State) asks whether those requirements are justified by the objective of protecting port safety. I agree with the Commission that the requirements of medical fitness, successful completion of psychological tests and professional training are, in principle, appropriate means of ensuring port safety.

141.

However, before they can be regarded as compatible with Article 49 TFEU, those requirements must be assessed from the point of view of their transparency, objectivity and impartiality. In that connection, the applicant undertakings submit that the Royal Decree of10 July 2016, in accordance with Article 3a of the 1972 Law, vests control over the external service for prevention and protection at work, which is responsible for certifying applicants’ medical fitness, and over the body tasked with carrying out psychotechnical testing, in the authorised employers’ organisation (and the trade unions).

142.

It is for the referring court, which has all the material evidence, to determine whether or not the control exercised by the authorised employers’ organisations and trade unions over the bodies issuing medical fitness certificates and carrying out psychotechnical testing results in a lack of objectivity and transparency. ( 93 )

143.

It may be worth bearing in mind for the purposes of making that assessment that, in an uncontrolled labour market, applicants for recognition would be able to approach any authorised undertaking in order to have the aforementioned medical certifications and psychotechnical tests performed.

144.

As regards professional training, I have already stated that, as a condition of acquiring recognition, this is an appropriate means of ensuring port safety.

145.

However, the referring court must ascertain whether, as the applicant undertakings claim, the professional training which applicant dockers are required to complete in order to obtain recognition is also controlled by the employers’ organisations and trade unions present in the port areas, in which case it would not be open to any potential worker under objective and equal conditions. In that event, it might be exposed to the same risks (lack of impartiality, conflicts of interests) as I mentioned in my proposed answer to the first question.

146.

Article 4(1), point 6, of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 2016, makes the pursuit of the profession of dock worker subject to possession of certain professional qualifications. Belgian dockers therefore appear to form part of a ‘regulated profession’ within the meaning of Article 3(1)(a) of Directive 2005/36 and the national provision transposing it. ( 94 ) Belgium should recognise the qualifications that dock workers have obtained in other Member States in which they have pursued that professional activity in accordance with the procedures and within the specific limits laid down by that directive. ( 95 )

147.

Article 4(3) of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, provides that dock workers from other Member States who meet equivalent requirements in their country of origin are not to be bound by the conditions of recognition applicable under the Belgian legislation.

148.

The lack of information (in both the order for reference and the Belgian Government’s observations and replies) make it difficult to determine whether that procedure for assessing the equivalence of professional qualifications held by dockers from other Member States is consistent with EU law. According to the Commission, the Belgian Government did not notify it of the profession of dock worker so that this could be included in the (Commission’s own) database of regulated professions for the purposes of Directive 2005/36.

149.

Once it has clarified these points, the referring court must take into account that any recognition granted to dock workers from other Member States must, in all cases, be valid in all port areas in Belgium and must not be subject to a requirement of renewal for each new employment contract.

150.

Article 2(3) of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, provides that the recognition of non-pool dock workers is to be confined to the duration of their employment contract.

151.

A provision of this kind constitutes a serious limit on the engagement of dock workers and acts as a deterrent. Any docker seeking recognition as a non-pool worker must apply for it every time he concludes a contract with the same or another undertaking. Designed in this way, the measure represents a significant restriction on both the freedom of establishment and the free movement of workers.

152.

Inasmuch as dock work is dominated by short-term jobs, the requirement for workers to keep renewing their recognition for every new contract inevitably steers them towards a preference for applying to join the pool. This perpetuates the closed shop operating under the control of the trade unions and the authorised employers’ organisation, and at the same time makes it difficult for new undertakings from other Member States to establish themselves in Belgian port areas. ( 96 )

153.

The Belgian Government states that the recognition of non-pool workers who have been granted recognition before is quicker, and that an electronic database (named ‘Portununus’) is being created in order to speed up the process and avoid delays. ( 97 )

154.

In any event, the fact that the granting of recognition is linked to the duration of the employment contract only in the case of workers outside the pool, but not in the case of those within it, still strikes me as disproportionate. The argument (cited by the Belgian Government) as to the need to verify that the former continue to meet the conditions of recognition could also be applied to pool workers, who may likewise no longer be medically or psychologically fit to perform their tasks.

155.

Also disproportionate, in my opinion, is the transitional regime provided for in Article 13/1 of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, which applies to the recognition of non-pool dockers that have contracts with undertakings.

156.

In accordance with those transitional rules, employment contracts must be concluded, initially, for an indefinite period; from 1 July 2017, for at least 2 years; from 1 July 2018, for at least 1 year; from 1 July 2019, for at least 6 months; and, from 1 July 2020, for a period to be determined on a discretionary basis.

157.

Since most port work is short-term, that transitional regime meant that almost all port workers engaged were pool members and made it difficult to hire port workers directly.

158.

The Belgian Government and the Commission submit that the aim of those transitional rules is to facilitate the gradual opening-up of the closed-shop system so as to ensure its economic viability. As I have already noted, however, preserving the economic viability of the pool-based engagement system cannot properly be regarded as an overriding requirement in the general interest.

159.

It is true, however, that a transitional system could, hypothetically, protect the advantageous social and economic conditions enjoyed by pool dockers, while at the same time ensuring that the immediate abolition of those conditions does not entail a serious risk of undermining the balance of the social security system. ( 98 ) The fact nonetheless remains, first, that the Belgian Government has not used this argument and, second, that it is unlikely that the immediate abolition of the regime at issue would have a significant impact on the financing of the Belgian social security system.

160.

According to Article 15/1 of the Royal Decree of 5 July 2004, introduced by the Royal Decree of 10 July 2016, ‘port workers recognised under [the previous legislation] shall be recognised by operation of law as port workers forming part of the pool […]’.

161.

The applicant undertakings take the view that such automatic recognition makes it difficult for port workers to be engaged directly (on a permanent contract). This, they go on to say, prevents employers from finding qualified workers, from concluding permanent contracts with them and from offering them job security in accordance with the provisions of ordinary employment law.

162.

I, however, agree with the Commission that the automatic recognition of former members of the general complement of workers as pool workers protects their rights without at the same time giving rise to a disproportionate restriction on the freedom of establishment or the free movement of workers.

163.

As the Belgian Government notes, this automatic mechanism exempts practising dockers from the obligation to apply for recognition under the Royal Decree of 10 July 2016.

164.

It is a logical measure inasmuch as the experience in dock work that those workers already have demonstrates their ability to perform the tasks in question with the knowledge and safety required. Moreover, it does not prevent undertakings from engaging them directly, even though, in practice, working conditions in the pool are more advantageous and direct engagement will not be a common occurrence.

165.

In accordance with Article 4(2) of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016:

166.

The referring court considers that the fact that the terms of dockers’ mobility are laid down by collective agreement may limit their mobility between port areas in Belgium, in breach of Articles 45 and 49 TFEU, since the legislature has not laid down the conditions or detailed rules for giving effect to such mobility.

167.

Articles 45 and 49 TFEU apply not only to measures adopted by the public authorities but also to collective agreements. ( 100 ) Although, in principle, it is not contrary to those articles for the legislature to delegate to collective agreements the task of laying down the rules governing the mobility of recognised dock workers, such a delegation is to be regarded as valid provided that those agreements are not used in a corporatist fashion in order to create obstacles to the free movement of workers and the freedom of establishment. ( 101 )

168.

The applicant undertakings tell of one collective agreement that completely prohibits the mobility of recognised dockers between Belgian ports. The Belgian Government states that that agreement permits some mobility but that the transfer of workers from one pool to another is complicated because it is dependent on there being a demand for labour in the host pool. It further argues that, while a recognised worker who joins a pool could not work in another port area, workers recognised as non-pool dockers in one port area could be engaged, again on a non-pool basis, in another port area.

169.

In the absence of further data, it is for the referring court to analyse whether or not the collective agreements in place at Belgian ports restrict workers’ mobility between one pool and another. That analysis must not fail to take account of the fact that a collective negotiation conducted between the trade unions and the authorised employers’ association present in each port could be used to maintain restrictions on the internal market freedoms and protect the advantages enjoyed by those drafting such collective agreements, where these impact on access to port activity and the employment of dockers.

170.

In any event, it would appear that the national legislation guarantees recognition for dockers from other Member States and such recognition should be valid in all port areas in Belgium. According to the Court’s case-law, the obligation to request administrative authorisation to carry on an activity restricts the freedom of establishment more extensively where the undertaking from another Member State must obtain multiple authorisations from different State authorities. ( 102 ) This would be the case if recognition had to be successively (or simultaneously) sought from the Administrative Committees in the various Belgian ports.

171.

Article 1(3) of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, provides:

172.

It follows that, since the entry into force of the Royal Decree of 2016, the safety certificate, being equivalent to recognition, has replaced the former pool of logistics workers.

173.

In common with the referring court, the Commission and the Belgian Government, I consider that the requirement for logistics workers to hold that certificate may, in principle, be justified on grounds of port safety.

174.

However, that measure will pass the proportionality test only if the detailed rules for its application are appropriate. According to the Belgian Government, those rules were laid down in a collective agreement of 28 September 2016. Since the order for reference contains little information in this regard, it must fall to the Raad van State (Council of State) to assess their proportionality.

175.

For the purposes of that assessment:

176.

In the light of the foregoing, I suggest that the Court reply to the requests for a preliminary ruling in Cases C‑407/19 and C‑471/19 as follows:

In Case C‑471/19:

In Case C‑407/19:

Articles 49 and 45 TFUE preclude national legislation which makes the prior recognition of workers a condition of access to dock work, where the detailed rules for its implementation include any of the following elements: