Report for the Hearing delivered in Case 130/88

I — Facts and procedure

A — Legislation relevant to the dispute

In the Netherlands, authorization to carry on the trade of a self-employed house painter is subject to general conditions of solvency and commercial knowledge and to specific conditions relating to professional ability.

Persons wishing to work as self-employed painters in the Netherlands must obtain a licence from the Bedrijfschap voor het Schildersbedrijf (professional organization of the painting trade).

Exemption from the prohibition on establishment without a licence may be granted in particular

‘where the provisions of a directive of the Council of the European Communities relating to the establishment of natural persons and companies or the provision of services by natural persons or companies in the territory of one of the Member States of the European Economic Community gives rise to the granting of exemption’.

The directive applicable to carrying on the activity of a painter is Council Directive 64/427/EEC 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 to 40 (Industry and small craft industries) (‘the directive’).

The directive lays down rules to cover those cases where the terms on which the categories of activity covered may be exercised differ from Member State to Member State: a Member State which makes establishment depend on requirements as regards professional ability and knowledge is to consider those requirements as having been satisfied where the person concerned has acquired work experience over a certain number of years in another Member State where such requirements are not laid down.

Article 3 of the directive provides as follows:

‘Where, in a Member State, the taking up or pursuit of any activity referred to in Article 1(2) is dependent on the possession of general, commercial or professional knowledge and ability, that Member State shall accept as sufficient evidence of such knowledge and ability the fact that the activity in question has been pursued in another Member State for any of the following periods: (a) six consecutive years either in an independent capacity or as a person responsible for managing an undertaking; or (b) three consecutive years either in an independent capacity or as a person responsible for managing an undertaking, where the beneficiary can prove that for the occupation in question he has received at least three years' previous training, attested by a certificate recognized by the State, or regarded by the competent professional body as fully satisfying its requirements; or (c) three consecutive years in an independent capacity, where the beneficiary can prove that he has pursued the occupation in question for at least five years in a non-independent capacity; or (d) five consecutive years in a managerial capacity, not less than three years of which were in technical posts with responsibility for one or more departments of the undertaking, where the beneficiary can prove that for the occupation in question he has received at least three years' previous training, attested by a certificate recognized by the State or regarded by the competent professional body as fully satisfying its requirements. ...’

Article 4 of the directive provides as follows :

‘For the purpose of applying Article 3: (1) Member States in which the taking up and pursuit of any occupation referred to in Article 1(2) is subject to the possession of general, commercial or professional knowledge or ability shall, with the assistance of the Commission, inform the other Member States of the main characteristics of that occupation (description of the activities covered by the occupation); (2) the competent authority designated for this purpose by the country whence the beneficiary comes shall certify what professional activities were actually pursued by the beneficiary and the duration of those activities. Certificates shall be drawn up having regard to the official description of the occupation in question supplied by the Member State in which the beneficiary wishes to pursue such occupation, whether permanently or temporarily; (3) the host Member State shall grant authorization to pursue the activity in question on application by the person concerned, provided that the activity certified conforms to the main features of the description of the activity communicated pursuant to paragraph 1 and provided that any other requirements laid down by the rules of that State are satisfied.’

B — The main proceedings

Mr van de Bijl, the plaintiff in the main proceedings, left Lagere Technische School (Junior Secondary Technical School) in the Netherlands in July 1974. He worked in the Netherlands as a painter until August 1980.

The plaintiff also underwent professional training. He is the holder of the Dutch trainee journeyman painter's diploma (primary apprenticeship training course) and of the Dutch diploma for journeyman painters (advanced apprenticeship training course), which were awarded in 1976 and 1980 respectively.

In early October 1980 the plaintiff went to the United Kingdom, where he worked as a painter and decorator.

From 29 December 1981 to 20 February 1982 the plaintiff worked for an undertaking in the Netherlands and from 1 March to 2 September 1983 he was employed in a painting business, also in the Netherlands.

On 16 March 1983 the plaintiff registered in the commercial register of the Chamber of Commerce and Industry of Zaanland an undertaking in which he would carry on the trade of a painter.

In addition, a company was set up in the United Kingdom under the name C. C. van de Bijl (UK) Limited and was registered at the Company Registration Office, Cardiff, on 14 March 1984.

A branch office of C. C. van de Bijl (UK) Limited, whose registered office is in London, was registered at the Chamber of Commerce and Industry, Zaanland, on 14 December 1984. According to the certificate issued by the commercial register it was stated that the undertaking was set up on 26 October 1980 and the Netherlands office established on 1 April 1984.

In June 1984 the plaintiff's income consisted of unemployment benefit.

Since his Dutch diplomas were not recognized in the Netherlands as evidence of the professional ability and general commercial knowledge required to carry on the trade of painter in that country, the plaintiff applied to the competent authority for exemption from the prohibition of carrying on that trade without a licence on the grounds that his was a special case and serious interests were involved (Article 15(1)(b) of the Vestigingswet Bedrijven 1954). The Sociaal-Economische Raad (Social and Economic Council) rejected the application for exemption by decision of 7 October 1983.

The plaintiff lodged a complaint on the additional basis of the exemption relating to the existence of a Community directive, which is provided for in Article 15(1)(c) of the Vestigingswet Bedrijven 1954. By decision of 13 December 1983 the Sociaal-Economische Raad referred the application to the defendant as regards that aspect of European law raised in the complaint.

In response to a request made by the plaintiff the Department of Trade and Industry of the United Kingdom sent him, by letter of 20 March 1985, a certificate relating to professional activity issued pursuant to the directive and attesting in particular to the fact that the plaintiff

‘... has produced evidence to the effect that he has been engaged as a painter, decorator and paperhanger in an independent capacity for a total period of four years and five months and has received previous training regarded by a competent professional body as fully satisfying its requirements, as detailed below, and therefore satisfies the conditions laid down in Council Directive 64/427/EEC. Since October 1980, Mr van de Bijl has been director of C. C. van de Bijl (UK) Ltd, Suite L'Orient House, 42/45 New Broad Street, London EC2M 1QY. Prior to this Mr van de Bijl obtained over a period of five years 11 months the Dutch diplomas of elementary technical education; apprenticeship for trainee journeyman painters; and apprenticeship (advanced training) for journeyman painters. Mr van de Bijl carried out the following types of work as defined in Business Licensing Order relating to the Building Trades 1958 (Government Gazette 1969, 490) for a painter and decorator; and Business Licensing Order relating to Furniture Trades 1962 (Government Gazette 25) for a paperhanger: Painting, varnishing or spraying, including the treatment of ceilings, walls or floors with paint or similar products of buildings or other constructions or parts thereof; priming, whitewashing, limewashing or similar work: wallpapering. This certificate may be submitted in support of an application to the competent authorities of a Member State of the European Community for any authorization required under the law of that country (as host country) to pursue the activities of self-employed persons covered by the EC directives. It provides evidence to the authorities concerned of the training received and/or activities pursued’.

The United Kingdom Department of Trade and Industry considered that it could legitimately take into account the period of previous training undertaken by the plaintiff in the Netherlands, which the competent United Kingdom professional body recognized as satisfying its own requirements as to training.

On the strength of the directive and the aforementioned certificate, the plaintiff then applied to the Netherlands State Secretary for Economic Affairs for exemption from the prohibition on carrying on his trade.

The State Secretary considered that the training referred to in the certificate issued by the United Kingdom authorities had been received in the Netherlands, where it was not recognized. In any event, during the period when the plaintiff worked in the United Kingdom he had also worked in the Netherlands. He could not therefore have been pursuing an activity within the meaning of the directive.

When the certificate was rejected by the State Secretary, the Department of Trade and Industry sought an explanation from the Netherlands Government. It was informed that under Article 3(b) of the directive the Department ought not to have taken into account training received in a State other than that in which the plaintiff's activities were actually pursued, namely the United Kingdom. In the light of that response, the Department revised its initial interpretation of Article 3(b). The plaintiff was informed accordingly, although the certificate was not revoked, pending the ruling of the Court.

The plaintiff brought an action against the State Secretary's decision refusing to grant him exemption from the prohibition against his pursuing the trade of a painter.

Considering that the dispute between the parties was concerned with the question whether the plaintiff satisfies the conditions laid down by the directive with regard to the actual pursuit of his trade and to his prior training, the College van Beroep voor het Bedrijfsleven (administrative court of last instance in matters of trade and industry) requested the Court, by order of 6 April 1988, to give a preliminary ruling pursuant to Article 177 of the EEC Treaty on the following questions:

‘(1) Is it correct to interpret Directive 64/427/EEC, and in particular Article 4(3) thereof, as meaning that in the event that application is made to take up an activity in the host Member State on the basis of the production of a certificate as provided for in Article 4(2), the authority in that country must automatically grant the application, even in cases where the certificate contains manifest inaccuracies or errors? (2) Must the requirement set out in Article 3(b) and (d) of Directive 64/427/EEC for at least three years' previous training “attested by a certificate recognized by the State, or regarded by the competent professional body as fully satisfying its requirements” be construed as meaning that the training may have been received in a country or a Member State other than the State in which the activities in question were actually pursued within the meaning of that provision? (3) If the previous question is answered in the affirmative must “previous training” be interpreted as meaning training which, in the assessment of the competent authorities of the Member State where the aforementioned activities in question were actually pursued, is regarded as fully satisfying the requirements for pursuing that activity in that Member State? (4) Must Article 3 of Directive 64/427/EEC, where it refers to “the fact that the activity in question has been pursued in another Member State for ... (x) consecutive years”, be interpreted as meaning that only a period which was unbroken except for (short) absences for illness and (usual) holiday leave may be regarded as qualifying and not a period involving longer interruptions, in particular where a job was carried out elsewhere, even if the undertaking in the country from which the person concerned comes was not given up?’

The request for a preliminary ruling was received at the Court Registry on 5 May 1988.

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted by

the Netherlands Government, represented H. J. Heinemann, of the Ministry of Foreign Affairs,

the United Kingdom, represented by J. A. Gensmantel, Treasury Solicitor's Department, acting as Agent, assisted by A. Letemendia,

the Commission of the European Communities, represented by E. Lasnet and B. J. Drijber, members of its Legal Department, acting as Agents.

Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to refer the case to the Sixth Chamber and to open the oral procedure without any preparatory inquiry. However, it decided to ask the United Kingdom Government a question.

II — Summary of the written questions submitted to the Court

1. First question

The Netherlands Government considers that under Article 4 of the directive the host State is empowered not to take the certificate into account when assessing whether the conditions laid down in Article 3(a) to (d) relating to experience have been fulfilled, where the certificate contains errors in that connection. The determining factor is not the certificate, but whether the beneficiary has sufficient experience to offset his lack of diplomas or certificates certifying that he has the requisite general, commercial or professional knowledge or ability, since those national conditions for establishment have not been harmonized by the directive.

According to the United Kingdom, Article 4(3) of the directive is couched in positive terms, precluding any ambiguity and excluding any discretionary power on the part of the host State to challenge the validity of the certificate whether on grounds of manifest inaccuracy or latent defect.

If that were not the case, nationals of Member States seeking to establish themselves in other Member States would face delays and difficulties in asserting their riehts under the directive.

The Commission argues that a host Member State cannot be denied any power to check a certificate issued under Article 4(2) of the directive. Article 4(3) expressly provides that the authorities in the host country are to verify that the activities mentioned in the certificate correspond to the official description supplied pursuant to Article 4(1). Furthermore, the Commission's recommendation of 12 January 1965 on the manner in which that certificate is to be drawn up also shows that the host Member State is left a certain discretion.

However, that power should be narrowly circumscribed. Consequently it is not permissible to check the nature of the activities pursued by the person concerned. Moreover, such a check seems unnecessary, since the system laid down by the directive specifically provides that certificates are to be drawn up having regard to the official description of the occupation in question supplied by the host Member State.

The situation would be different if facts emerged which, without relating to the nature of the activities, showed irrefutably that there were inaccuracies in the certificate issued. The facts in question should be facts of which the competent authority was not aware when it issued the certificate and which, had that authority been aware of them, would have been bound to cause the content of the certificate to be different. An example would be facts showing irrefutably that the person concerned had not pursued the activities in question in the period mentioned in the certificate.

In such a case, it would not be possible to require the authorities in the host Member State not to have regard to those new factors, in particular where those facts are relevant to the legal system of that Member State. To claim that the host Member State must give credence in all circumstances to the content of a certificate submitted pursuant to Article 4(3) of the directive would disregard the fact that the very aim of the directive is to equate actual professional experience with a diploma.

2. Second question

According to the Netherlands Government, the objective of the directive is to facilitate the establishment in another Member State of persons pursuing a particular occupation even though they do not fulfil the requirements which are applicable in that country with regard to establishment. The directive starts out from the principle that the knowledge required for the purposes of establishment can be attested, not only by the compulsory national certificates (or certificates issued by other Member States and recognized as being equivalent), but also by experience acquired in the country from which the worker came, possibly in combination with training, as specified by Article 3 of the directive. Under the provisions of the first paragraph of Article 3, the host Member State must accept as sufficient evidence of knowledge and ability the fact that the activity in question has been pursued in another Member State. The Netherlands Government considers therefore that knowledge and experience obtained in the host Member State are not relevant. The provisions of the Treaty relating to the right of establishment cannot be applied to situations which are purely internal to a Member State, as in this case where a Netherlands national wishing to establish himself in the Netherlands seeks to have the training which he received in the Netherlands taken into account in order to be exempted from the requirements laid down in the Netherlands in relation to establishment.

The United Kingdom considers that for the purposes of Article 3 of the directive the training must have been received in the Member State in which the activities in question were actually pursued and, accordingly, submits that the second question should be answered in the negative.

The requirements of Article 3(b) and (d) are governed by the opening paragraph of Article 3, which specifies that Member States shall accept as sufficient evidence of the migrant's knowledge and ability ‘the fact that the activity in question has been pursued in another Member State’ for any of the periods mentioned in subparagraphs (a) to (d). It follows that in subparagraphs (b) and (d) of Article 3 the condition relating to previous training must be met in the same Member State in which the migrant pursued his activity. The years of previous training must be added to the years of pursuit of the activity referred to in subparagraphs (b) and (d) to make up the total period during which ‘the activity in question has been pursued in another Member State’, under Article 3, for the purposes of recognition by the host State. The sixth recital in the preamble to the directive confirms that interpretation of Article 3.

The Commission advocates giving a broad interpretation to the directive. It points in that connection to the judgment of 7 February 1979 in Case 115/78 Knoors [1979] ECR 399, in which the Court ruled that persons possessing the nationality of the host Member State may also rely on the provisions of the directive and, more generally, on those of Article 52 of the Treaty. If the directive is therefore endowed with a broad field of application ratione personae, there is no reason for limiting its field of application solely to where the person concerned has undergone training and acquired experience in one and the same Member State.

3. Third question

The Netherlands Government argues that it is for the Member State in which the training was undertaken to judge whether that training is completely valid in order to pursue the occupation in question. It adds that the United Kingdom lays down no requirement for establishment with respect to Mr van de Bijl's occupation and hence there was no reason to consider that training as completely valid.

In view of the United Kingdom's negative answer to the second question, there is, in its opinion, no call for a reply to the third question concerning the country in which the migrant must demonstrate that he has received adequate training for the purposes of Article 3(b) and (d).

The Commission considers that ‘previous training’ within the meaning of Article 3(b) and (d) should be understood as meaning training fully authorized in the Member State from which the migrant came and in which the activity in question was actually pursued, unless that should result in a national of the host State circumventing that State's legislation with regard to the professional ability required.

4. Fourth question

The Netherlands Government argues that it is implicit in the nature of the rules whereby certificates attesting to the possession of general, commercial or professional knowledge and ability may be replaced by experience as far as national requirements for establishment are concerned that fulfilment of those rules should be subject to strict conditions. Consequently, for the purposes of the directive there is actual pursuit of the activity in question only where the activity has been pursued full time without interruption, except for (short) absences on account of illness and usual holiday leave, for the period laid down in Article 3 of the directive. The activity cannot be said to have been actually pursued where there were longer interruptions, for instance where the worker was in paid employment elsewhere.

The United Kingdom considers that the application of the terms ‘consecutive years’ in the circumstances of each particular case is essentially a matter to be determined by the competent authorities in the Member State from which the migrant comes. The national authorities must decide, for example, whether a period of interruption during which a migrant works in another Member State, whilst maintaining an undertaking in the Member State from which he comes, breaks the continuity of the period of ‘consecutive years’ which enables him to qualify under Article 3 of the directive.

The Commission argues that the wording of Article 3 shows without the slightest doubt that the activities pursued in the Member State which issued the certificate must have been effectively pursued for a period of consecutive years.

The word ‘effectivement’, which is used repeatedly, shows that the activity must not have been interrupted otherwise than by short periods of sick leave and usual holidays. The duration of the work enables the practical experience to be equated with full vocational training. If in reality the experience was for a shorter time, there is no justification in equating it therewith.

The word ‘consecutive’ also shows that the years whose number is prescribed by the directive must follow each other without interruption. This interpretation confirms the object of the directive which is to equate professional experience with vocational training.

If the professional activity was interrupted, for instance because the person in question went to pursue an activity elsewhere, the authorities responsible for issuing the certificate referred to in Article 4(2) should deduct the missing periods from the period stated as being the total time for which that person pursued the activities in their country.

III — Information provided to the Court

The Court asked the United Kingdom to answer the following question:

‘On what conditions was the plaintiff in the above proceedings authorized to pursue the trade of a painter in the United Kingdom? In particular, did the United Kingdom authorities make the plaintiff's previous training in the Netherlands a condition for his carrying on his trade or was he authorized to carry on his trade irrespective of his previous training in the Netherlands?’

By letter of 5 January 1989, the United Kingdom answered as follows:

‘Since no authorization is necessary to carry on the trade of a painter and decorator in the United Kingdom, no conditions were imposed on the plaintiff as to his previous training or otherwise. However, before issuing to the plaintiff the certificate of experience under Article 3(b) of Council Directive 64/427/EEC inquiries were made to establish that the plaintiff's previous training satisfied the requirements of a competent UK professional body. Membership of a competent body is not a condition of carrying on the trade of painter and decorator.’

T. F. O'Higgins

Judge-Rapporteur

1 Language of the case: Dutch.

2 Article 15(l)(c) of the Vestigingswet Bedrijven of 25 February 1954 (Law on setting up as a tradesman), Stcatibhd 99.

3 OJ, English Special Edition 1963-64, p. 148.

4 JO 1965, p. 410.

5 The word ‘effectivement’/‘daadwerkelijke’ is rendered by ‘the fact that (the activity in question has been pursued)’ in the English version of the directive (translator).