61977J0011

1 . FREEDOM OF ESTABLISHMENT - RESTRICTIONS - ABOLITION - TRANSITIONAL PERIOD - EXPIRATION - RULE ON EQUAL TREATMENT WITH NATIONALS - DIRECT EFFECT

( EEC TREATY , ARTICLES 7 , 8 ( 7 ) AND 52 )

2 . FREEDOM OF ESTABLISHMENT - NEW MEMBER STATES - RESTRICTIONS - ABOLITION - ENTRY INTO FORCE

( EEC TREATY , ARTICLE 52 )

3 . FREEDOM OF ESTABLISHMENT - ACCESS TO CERTAIN PROFESSIONS - REQUIREMENT OF QUALIFICATIONS - ABOLITION - COUNCIL DIRECTIVES - ABSENCE - DENIAL OF BENEFIT OF FREEDOM OF ESTABLISHMENT - NOT PERMISSIBLE

( EEC TREATY , ARTICLES 52 , 57 ( 1 ))

1 . THE RULE ON EQUAL TREATMENT WITH NATIONALS IS ONE OF THE FUNDAMENTAL LEGAL PROVISIONS OF THE COMMUNITY . AS A REFERENCE TO A SET OF LEGISLATIVE PROVISIONS EFFECTIVELY APPLIED BY THE COUNTRY OF ESTABLISHMENT TO ITS OWN NATIONALS , THIS RULE IS , BY ITS ESSENCE , CAPABLE OF BEING DIRECTLY INVOKED BY NATIONALS OF ALL THE OTHER MEMBER STATES . IN LAYING DOWN THAT FREEDOM OF ESTABLISHMENT SHALL BE ATTAINED AT THE END OF THE TRANSITIONAL PERIOD , ARTICLE 52 IMPOSES AN OBLIGATION TO ATTAIN A PRECISE RESULT , THE FULFILMENT OF WHICH HAD TO BE MADE EASIER BY , BUT NOT MADE DEPENDENT ON , THE IMPLEMEN- TATION OF A PROGRAMME OF PROGRESSIVE MEASURES . SINCE THE END OF THE TRANSITIONAL PERIOD ARTICLE 52 OF THE TREATY HAS BEEN A DIRECTLY APPLICABLE PROVISION , DESPITE THE ABSENCE , IN A PARTICULAR SPHERE , OF THE DIRECTIVES PRESCRIBED BY ARTICLES 54 ( 2 ) AND 57 ( 1 ) OF THE TREATY .

2 . IN THE ABSENCE OF TRANSITIONAL PRO- VISIONS CONCERNING THE RIGHT OF ESTABLISHMENT IN THE TREATY OF ACCESSION OF 22 JANUARY 1972 , THE PRINCIPLE CONTAINED IN ARTICLE 52 HAS , IN THE CASE OF THE NEW MEMBER STATES AND THEIR NATIONALS , BEEN FULLY EFFECTIVE SINCE THE ENTRY INTO FORCE OF THE SAID TREATY , THAT IS , SINCE 1 JANUARY 1973 . THUS A MEMBER STATE CANNOT , AFTER 1 JANUARY 1973 , MAKE THE EXERCISE OF THE RIGHT TO FREE ESTABLISHMENT BY A NATIONAL OF A NEW MEMBER STATE SUBJECT TO AN EXCEPTIONAL AUTHORIZATION IN SO FAR AS HE FULFILS THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THE COUNTRY OF ESTABLISHMENT FOR ITS OWN NATIONALS .

3 . THE LEGAL REQUIREMENT , IN THE VARIOUS MEMBER STATES , RELATING TO THE POS- SESSION OF QUALIFICATIONS FOR ADMISSION TO CERTAIN PROFESSIONS CONSTITUTES A RESTRICTION ON THE EFFECTIVE EXERCISE OF THE FREEDOM OF ESTABLISHMENT THE ABOLITION OF WHICH IS , UNDER ARTICLE 57 ( 1 ), TO BE MADE EASIER BY DIRECTIVES OF THE COUNCIL FOR THE MUTUAL RECOGNITION OF DIPLOMAS , CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS . NEVERTHELESS , THE FACT THAT THOSE DIRECTIVES HAVE NOT YET BEEN ISSUED DOES NOT ENTITLE A MEMBER STATE TO DENY THE PRACTICAL BENEFIT OF THAT FREEDOM TO A PERSON SUBJECT TO COMMUNITY LAW WHEN THE FREEDOM OF ESTABLISHMENT PROVIDED FOR BY ARTICLE 52 CAN BE ENSURED IN THAT MEMBER STATE BY VIRTUE IN PARTICULAR OF THE PROVISIONS OF THE LAWS AND REGULATIONS ALREADY IN FORCE .

IN CASE 11/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL ADMINISTRATIF , PARIS , FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

RICHARD HUGH PATRICK

AND

LE MINISTRE DES AFFAIRES CULTURELLES ( MINISTER FOR CULTURAL AFFAIRS )

ON THE INTERPRETATION OF ARTICLES 52 TO 54 OF THE EEC TREATY ,

1 BY ORDER OF 3 JANUARY 1977 , LODGED AT THE COURT REGISTRY ON 25 JANUARY 1977 , THE TRIBUNAL ADMINISTRATIF , PARIS , REFERRED TO THE COURT A QUESTION CONCERNING THE INTERPRETATION OF ARTICLES 52 TO 54 OF THE EEC TREATY CONCERNING THE RIGHT OF ESTABLISHMENT .

2 THIS QUESTION WAS SUBMITTED IN CONNEXION WITH A DISPUTE BETWEEN THE FRENCH MINISTER FOR CULTURAL AFFAIRS AND A BRITISH SUBJECT WHO POSSESSED AN ARCHITECT ' S CERTIFICATE ISSUED IN THE UNITED KINGDOM BY THE ARCHITECTURAL ASSOCIATION AND WHO , EARLY IN 1973 , APPLIED FOR AUTHORIZATION TO PRACTISE AS AN ARCHITECT IN FRANCE .

3 UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 2 ( 2 ) OF THE FRENCH LAW OF 31 DECEMBER 1940 ESTABLISHING THE ORDER OF ARCHITECTS AND GOVERNING THE TITLE AND PROFESSION OF ARCHITECT , ' NATIONALS OF FOREIGN COUNTRIES SHALL BE AUTHORIZED TO PRACTISE THE PROFESSION OF ARCHITECT IN FRANCE SUBJECT TO THE CONDITIONS OF RECIPROCITY LAID DOWN BY DIPLOMATIC CONVENTIONS AND TO PRODUCTION OF A CERTIFICATE EQUIVALENT TO THE CERTIFICATE REQUIRED FOR FRENCH ARCHITECTS ' .

4 UNDER THE THIRD SUBPARAGRAPH OF ARTICLE 2 ( 2 ), ' FOREIGNERS NOT COVERED BY PROVISIONS OF A CONVENTION MAY , EXCEPTIONALLY , RECEIVE THE SAID AUTHORIZATION ' .

5 UNDER A MINISTERIAL DECREE OF 22 JUNE 1964 , ADOPTED IN IMPLEMENTATION OF THIS PROVISION , HOLDERS OF CERTIFICATES ISSUED BY THE AFORESAID ARCHITECTURAL ASSOCIATION WERE CONSIDERED TO FULFIL THE CONDITIONS CONCERNING EQUIVALENT QUALIFICATIONS LAID DOWN IN THE ABOVE-MENTIONED ARTICLE 2 ( 2 ).

6 BY DECISION OF 9 AUGUST 1973 THE APPLICANT WAS REFUSED THE AUTHORIZATION REQUESTED ON THE GROUND THAT , UNDER THE PROVISIONS OF THE LAW OF 31 DECEMBER 1940 , SUCH AUTHORIZATION CONTINUED TO BE EXCEPTIONAL IN CASES WHERE THERE WAS NO CONVENTION OF RECIPROCITY BETWEEN FRANCE AND THE APPLICANT ' S COUNTRY OF ORIGIN AND THAT , IN THE ABSENCE OF A SPECIFIC CONVENTION FOR THIS PURPOSE BETWEEN MEMBER STATES OF THE EEC AND , IN PARTICULAR , BETWEEN FRANCE AND THE UNITED KINGDOM , THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY COULD NOT BE A SUBSTITUTE FOR SUCH A CONVENTION BECAUSE ARTICLES 52 TO 58 CONCERNING FREEDOM OF ESTABLISHMENT REFERRED , FOR THE ATTAINMENT OF THIS FREEDOM , TO DIRECTIVES OF THE COUNCIL WHICH HAD NOT YET BEEN ISSUED .

7 THE TRIBUNAL ADMINISTRATIF , PARIS , TO WHICH AN APPLICATION HAS BEEN MADE FOR THE ANNULMENT OF THIS DECISION , ASKS THE COURT WHETHER , ' IN THE STATE OF COMMUNITY LAW ON 9 AUGUST 1973 , . . . A BRITISH SUBJECT WAS ENTITLED TO INVOKE IN HIS FAVOUR THE BENEFIT OF THE RIGHT OF ESTABLISHMENT TO PRACTISE THE PROFESSION OF ARCHITECT IN A MEMBER STATE OF THE COMMUNITY ' .

8 UNDER THE PROVISIONS OF ARTICLE 52 OF THE TREATY , FREEDOM OF ESTABLISHMENT SHALL INCLUDE THE RIGHT TO TAKE UP ACTIVITIES AS SELF-EMPLOYED PERSONS AND TO PURSUE THEM ' UNDER THE CONDITIONS LAID DOWN FOR ITS OWN NATIONALS BY THE LAW OF THE COUNTRY WHERE SUCH ESTABLISHMENT IS EFFECTED ' .

9 AS THE COURT OF JUSTICE HELD IN ITS JUDGMENT OF 21 JUNE 1974 ( REYNERS V BELGIUM , CASE 2/74 ( 1974 ) ECR 631 ), THE RULE ON EQUAL TREATMENT WITH NATIONALS IS ONE OF THE FUNDAMENTAL LEGAL PROVISIONS OF THE COMMUNITY AND , AS A REFERENCE TO A SET OF LEGISLATIVE PROVISIONS EFFECTIVELY APPLIED BY THE COUNTRY OF ESTABLISHMENT TO ITS OWN NATIONALS , THIS RULE IS , BY ITS ESSENCE , CAPABLE OF BEING DIRECTLY INVOKED BY NATIONALS OF ALL THE OTHER MEMBER STATES .

10 IN LAYING DOWN THAT , IN THE CASE OF THE OLD MEMBER STATES AND THEIR NATIONALS , FREEDOM OF ESTABLISHMENT SHALL BE ATTAINED AT THE END OF THE TRANSITIONAL PERIOD , ARTICLE 52 THUS 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 .

11 THE FACT THAT THIS PROGRESSION HAS NOT BEEN ADHERED TO LEAVES THE OBLIGATION ITSELF INTACT BEYOND THE END OF THE PERIOD PROVIDED FOR ITS FULFILMENT .

12 IT IS NOT POSSIBLE TO INVOKE AGAINST THE DIRECT EFFECT OF THE RULE ON EQUAL TREATMENT WITH NATIONALS CONTAINED IN ARTICLE 52 THE FACT THAT THE COUNCIL HAS FAILED TO ISSUE THE DIRECTIVES PROVIDED FOR BY ARTICLES 54 AND 57 OR THE FACT THAT CERTAIN OF THE DIRECTIVES ACTUALLY ISSUED HAVE NOT FULLY ATTAINED THE OBJECTIVES OF NON-DISCRIMINATION REQUIRED BY ARTICLE 52 .

13 AFTER THE EXPIRY OF THE TRANSITIONAL PERIOD THE DIRECTIVES PROVIDED FOR BY THE CHAPTER ON THE RIGHT OF ESTABLISHMENT HAVE BECOME SUPERFLUOUS WITH REGARD TO IMPLEMENTING THE RULE ON NATIONALITY , SINCE THIS IS HENCEFORTH SANCTIONED BY THE TREATY ITSELF WITH DIRECT EFFECT .

14 IN THE ABSENCE OF TRANSITIONAL PROVISIONS CONCERNING THE RIGHT OF ESTABLISHMENT IN THE TREATY OF ACCESSION OF 22 JANUARY 1972 , THE PRINCIPLE CONTAINED IN ARTICLE 52 HAS , IN THE CASE OF THE NEW MEMBER STATES AND THEIR NATIONALS , BEEN FULLY EFFECTIVE SINCE THE ENTRY INTO FORCE OF THE SAID TREATY , THAT IS , SINCE 1 JANUARY 1973 .

15 THUS A MEMBER STATE CANNOT , AFTER 1 JANUARY 1973 , MAKE THE EXERCISE OF THE RIGHT TO FREE ESTABLISHMENT BY A NATIONAL OF A NEW MEMBER STATE SUBJECT TO AN EXCEPTIONEL AUTHORIZATION IN SO FAR AS HE FULFILS THE CONDITIONS LAID DOWN BY THE LEGISLATION OF THE COUNTRY OF ESTABLISHMENT FOR ITS OWN NATIONALS .

16 IN THIS CONNEXION THE LEGAL REQUIREMENT , IN THE VARIOUS MEMBER STATES , RELATING TO THE POSSESSION OF QUALIFICATIONS FOR ADMISSION TO CERTAIN PROFESSIONS CONSTITUTES A RESTRICTION ON THE EFFECTIVE EXERCISE OF THE FREEDOM OF ESTABLISHMENT THE ABOLITION OF WHICH IS , UNDER ARTICLE 57 ( 1 ), TO BE MADE EASIER BY DIRECTIVES OF THE COUNCIL FOR THE MUTUAL RECOGNITION OF DIPLOMAS , CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS .

17 NEVERTHELESS , THE FACT THAT THOSE DIRECTIVES HAVE NOT YET BEEN ISSUED DOES NOT ENTITLE A MEMBER STATE TO DENY THE PRACTICAL BENEFIT OF THAT FREEDOM TO A PERSON SUBJECT TO COMMUNITY LAW WHEN THE FREEDOM OF ESTABLISHMENT PROVIDED FOR BY ARTICLE 52 CAN BE ENSURED IN THAT MEMBER STATE BY VIRTUE IN PARTICULAR OF THE PROVISIONS OF THE LAWS AND REGULATIONS ALREADY IN FORCE .

18 THE ANSWER TO THE QUESTION REFERRED TO THE COURT MUST THEREFORE BE THAT , WITH EFFECT FROM 1 JANUARY 1973 , A NATIONAL OF A NEW MEMBER STATE WHO HOLDS A QUALIFICATION RECOGNIZED BY THE COMPETENT AUTHORITIES OF THE MEMBER STATE OF ESTABLISHMENT AS EQUIVALENT TO THE CERTIFICATE ISSUED AND REQUIRED IN THAT STATE ENJOYS THE RIGHT TO BE ADMITTED TO THE PROFESSION OF ARCHITECT AND TO PRACTISE IT UNDER THE SAME CONDITIONS AS NATIONALS OF THE MEMBER STATE OF ESTABLISHMENT WITHOUT BEING REQUIRED TO SATISFY ANY ADDITIONAL CONDITIONS .

COSTS

19 THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

20 SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL ADMINISTRATIF , PARIS , BY ORDER OF 3 JANUARY 1977 HEREBY RULES :

WITH EFFECT FROM 1 JANUARY 1973 , A NATIONAL OF A NEW MEMBER STATE WHO HOLDS A QUALIFICATION RECOGNIZED BY THE COMPETENT AUTHORITIES OF THE MEMBER STATE OF ESTABLISHMENT AS EQUIVALENT TO THE CERTIFICATE ISSUED AND REQUIRED IN THAT STATE ENJOYS THE RIGHT TO BE ADMITTED TO THE PROFESSION OF ARCHITECT AND TO PRACTISE IT UNDER THE SAME CONDITIONS AS NATIONALS OF THE MEMBER STATE OF ESTABLISHMENT WITHOUT BEING REQUIRED TO SATISFY ANY ADDITIONAL CONDITIONS .