DELIVERED ON 12 DECEMBER 1978 (*1)

Mr President,

Members of the Court,

Article 4 (1) of the Netherlands Vestigingswet Bedrijven 1954 (Law of 1954 on the establishment of businesses) provides that the exercise of certain trades without authorization from the competent Chamber of Commerce and Industry (Kamer van Koophandel en Fabrieken) may be prohibited by regulation. This was done by Articles 19 and 27 of the Vestigingsbesluit bouwnijverheidsbedrijven 1958 (Decree of 1958 on establishment in building trades) so far as the plumbing and water fitting trades were concerned and by Article 7 of the Vestigingsbesluit verwarmings- en aanverwante bedrijven 1960 (Decree of 1960 on the establishment of heating and associated businesses) so far as the central heating business was concerned. Article 15 (1) (c) of the above-mentioned law provides as follows:

‘Our Minister of Economic Affairs shall on application grant exemption from a prohibition contained in a decision relating to establishment on the exercise of a trade referred to in that decision:

(a)—

…

(b)—

…

(c)—

if the provisions of a directive of the Council of the European Communities with regard to the establishment of natural persons and companies in the territory of one of the Member States of the European Economic Community or with regard to the provision of services by natural persons and companies in that territory require such exemption.’

The plaintiff in the main action, who was born in Urmond in the Netherlands in 1939 and is a Netherlands national, married a Belgian woman on 30 April 1962 in Dilsen (Stokkem) in Belgium and has since been resident there. Until 13 March 1970 he was employed at his father-in-law's undertaking which carried on work in central heating, plumbing, water fitting and gas fitting. According to certificates within the meaning of Article 4 (2) of Directive No 64/427/EEC of the Council of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23-40 (Industry and small craft industries) (Official Journal, English Special Edition 1963-1964, p. 148) issued on 21 June 1976 by the Belgian Minister van Middenstand (Minister for Small Firms and Trades) the plaintiff was engaged in Dilsen (Stokkem) from 13 March 1970 without interruption as an independent tradesman, namely as a central-heating contractor and sanitary contractor and plumber.

As the plaintiff intends to operate as an independent contractor in central heating, plumbing and water fitting at his birthplace, Urmond, he lodged on 24 June 1976 an application for an exemption pursuant to Article 15 (1) of the Vestigingswet Bedrijven 1954 to the Kamer van Koophandel en Fabrieken voor de Mijnstreek te Heerlen (Chamber of Commerce and Industry for the mining region of Heerlen). By decision of 31 January 1977 the Secretary of State for Economic Affairs, the defendant in the main action, rejected the application on the ground that as a Netherlands national in the Netherlands the applicant cannot be considered to be a beneficiary within the meaning of Article 4 (1) (a) of Council Directive No 64/429/EEC. On 14 April 1977 the plaintiff appealed to the College van Beroep voor het Bedrijfsleven against the rejection by decision of the defendant of 15 March 1977 of the objection which he had lodged against that decision — in so far as the decision of 15 March 1977 forwarded the application for examination on the basis of Article 15 (1) (b) of the Vestigingswet Bedrijven to the Sociaal Economische Raad (Economic and Social Council) it is not the subject-matter of the main action — requesting that that court should annul the contested decision and grant the exemptions applied for.

By judgment of 9 May 1978 the College van Beroep voor het Bedrijfsleven stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

Must Directive No 64/427/EEC of 7 July 1964 of the Council of the European Economic Community be interpreted as meaning that the expression ‘beneficiaries’ as referred to and as defined in Article 1 (1) of the directive also includes persons who possess and have always possessed solely the nationality of the host Member State?

I adopt the following viewpoint with regard to this question:

‘This judgment appears aberrant to me. It completely misunderstands the objectives of the Treaty, in particular that of Article 52 thereof which makes freedom of establishment one of the fundamental principles of the common market. To refuse a French national — even a naturalized one — the right to establish himself in the country of which he has become a citizen appears to me to be a blatant infringement of Article 52, the aim of which is to enable each national of every Member State to practise his profession in any State of the Community and above all in the State of which he has acquired the nationality’.

I can only agree with this view and thus reach the conclusion that Article 52 of the EEC Treaty does not prevent an interpretation of Directive No 64/427/EEC as meaning that persons who possess the nationality of the host State are also included among the beneficiaries in accordance with Article 1 (1).

3. The following consideration shows in addition that a different interpretation cannot be correct but would lead to blatant discrimination against the plaintiff in infringement of one of the fundamental principles of the Treaty: the plaintiff had at the age of 23 married a Belgian woman after training in the Netherlands to be an engine fitter and has resided since then in Dilsen (Stokkem) in Belgium. Having been at first employed at his father-in-law's undertaking, which carried on work in central heating, plumbing, water fitting and gas fitting, he was engaged in Dilsen from March 1970 without interruption as an independent tradesman in the central heating and sanitary contracting and plumbing businesses. When he lodged his application for exemption in the Netherlands in June 1976 in order to be able to operate as an independent contractor in central heating, plumbing and water fitting, he had already earned his living in Belgium for 15 years, had learned and had also carried on as an independent contractor for more than six years the trade which he now wishes to practise in the Netherlands. He was and is therefore in the same situation as a Belgian national with the same background. It is simply absurd for the plaintiff to be treated differently from a Belgian or national of another Member State in the same situation solely because of his Netherlands nationality. Such a procedure would be clear discrimination against the plaintiff exclusively on the ground of his nationality, which would be absolutely incompatible with the principles laid down in the EEC Treaty. The Commission correctly refers to the fact that if the interpretation put forward by the Netherlands Government were followed the freedom of movement for all persons who have exercised their right to freedom of movement and have learned or carried on another occupation in the Member State in which they established themselves would in practice be restricted in so far as they would be unable to return to their home State without having to expect difficulties with regard to the exercise of their new occupation. The same would apply to children who had emigrated with their parents to another Member State and had learned their occupation in that State.

4. I cannot agree with the fear of the Netherlands Government that if nationals of the host State were also subject to the rules laid down in Articles 3 and 4 of Directive No 64/427/EEC this would lead to the circumvention of the special provisions laid down by the host State with regard to the exercise of certain occupations. The requirements for acceptance of the corresponding exercise of an occupation in another Member State are, so far as the duration of that practice and the capacity required are concerned, not simple and can in no way be fulfilled by everybody, so that it cannot be expected that a substantial number of nationals of the host State might use this method in order to escape the provisions of national law relating to training and examinations.

Directive No 64/427/EEC of 7 July 1964 of the Council of the European Economic Community must be interpreted as meaning that the expression ‘beneficiaries’ as referred to and as defined in Article 1 (1) of that directive also includes persons who possess and have always possessed solely the nationality of the host Member State.

* * *

(*1) Translated from the German.