C. C. van de Bijl v Staatssecretaris van Economische Zaken. (Free Movement Of Persons ) [1989] EUECJ R-130/88 (27 September 1989)

Judgment 1 By a decision of 6 April 1988, which was received at the Court on 5 May 1988, the College van Beroep voor het Bedrijfsleven referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions concerning the interpretation of Articles 3 and 4 of Council Directive 64/427 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 ) Official Journal, English Special Edition 1963-64, p . 148 ), hereinafter referred to as "the directive ". 2 Those questions arose in appeal proceedings brought by Mr van de Bijl against the refusal of the Staatssecretaris van Economische Zaken ( Secretary of State for Economic Affairs ) - hereinafter referred to as "the Secretary of State" - to grant, pursuant to the directive, an exemption from the prohibition of carrying on the trade of self-employed house painter in the Netherlands without a licence from the professional organization of the painting trade . 3 Under the law of the Netherlands, the exercise of that trade in a self-employed capacity is subject to general conditions of solvency and commercial knowledge and to specific conditions relating to professional ability . The exercise of that trade is also dependent on a licence from the professional organization of the painting trade, subject to exemptions which may be granted under Community directives . 4 By virtue of Article 3 of the directive, where the taking up or pursuit in a Member State of an activity as a self-employed person in manufacturing and processing in industry and small craft industries is dependent on the possession of general, commercial or professional knowledge and ability, that State is to accept as sufficient evidence of such knowledge and ability the fact that the activity in question has been pursued in another Member State for, in particular, " ... ( 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 satisifying its requirements . ..." 5 Article 4(3 ) of the directive provides that the host Member State is to grant authorization to pursue the activity in question on application by the person concerned, provided that the activity certified by the competent authority in the Member State from which that person comes in accordance with Article 4(2 ) of the directive conforms to the main features of the description of the activity previously communicated by the host State and that any other requirements laid down by the laws of that State are satisfied . 6 Mr van de Bijl, a Netherlands national, was employed as a painter in the Netherlands until August 1980 . It was there that he obtained, in June 1976, a trainee journeyman painter' s diploma and, in October 1980, a diploma for journeyman painters . Those diplomas are not recognized in the Netherlands as evidence of the professional ability required to carry on the trade of self-employed painter . 7 From October 1980, the plaintiff worked as a painter and decorator in the United Kingdom . Between 29 December 1981 and 20 February 1982 and from 1 March to 2 September 1983, he was once more in paid employment in the Netherlands . In June 1984, Mr van de Bijl' s income consisted of benefit provided under Netherlands law for unemployed workers . 8 It appears from the documents before the Court that, between 1980 and 1984, a company bearing the plaintiff' s name was established and registered in the United Kingdom and a branch of that company was entered on a commercial register in the Netherlands . 9 The plaintiff relied on the dispensation under the directive in his request that that branch office be exempted from the prohibition of exercising the trade of a self-employed painter without a licence from the professional organization of the painting trade . 10 For that purpose, the plaintiff acquired from the United Kingdom Department of Trade and Industry a certificate issued pursuant to the directive which stated that he had worked as a self-employed painter for a total period of four years and five months, that he had received previous training regarded by a competent professional body in the United Kingdom as meeting its requirements and that he therefore satisfied the conditions laid down in the directive . That certificate was based on the fact that Mr van de Bijl had been the director of C . C . van de Bijl ( UK ) Ltd since October 1980 and that he had previously gained the abovementioned Netherlands diplomas after a period of five years and 11 months . 11 The Netherlands Secretary of State rejected the application for exemption, questioning the validity of the certificate on the ground that Mr van de Bijl, during the period of his work in the UK, had also worked in the Netherlands and that the training taken into account by the British authorities had been received in the Netherlands, where it is, however, not recognized as being sufficient for the exercise, in a self-employed capacity, of the activity in question . 12 The plaintiff appealed against that decision to the College van Beroep voor het Bedrijfsleven which considered that the case turned on the question whether the plaintiff satisfied the conditions imposed by the directive with regard to the actual exercise of his professional activity and to his previous training . The national court therefore decided to stay the proceedings until the Court of Justice had given a preliminary ruling 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 of 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?" 13 Reference is made to the Report for the Hearing for a more detailed statement of the legal background and the facts of the main action, the course of the procedure and the written submissions made to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court . 14 It should be noted at the outset that the directive' s purpose is to ensure, pending the coordination of national laws relating to the taking up and pursuit of the activities in question and to the mutual recognition of qualifications, that Member States adopt transitional measures permitting, in particular, the actual exercise during a minimum period of three consecutive years, of the trade in question in the Member State from which the person concerned comes, in addition to a previous training period of three years, to be accepted as sufficient conditions for access to that trade in host States which regulate the activity in question . Questions relating to the actual length of the professional experience received by the beneficiary in the Member State from which he comes 15 It is necessary first of all to examine the fourth and first questions in so far as they both concern the actual duration of the professional experience which the beneficiary received in the Member State from which he comes . 16 The fourth question, which should be considered first, seeks essentially to determine whether the formulation "the activity in question has been pursued in another Member State for ... ( x ) consecutive years ...", adopted in Article 3 of the directive, refers to a period which must be unbroken except for short absences due to illness or normal holiday leave, and which excludes the pursuit of an activity in another Member State, even though the business of the undertaking in the country from which the person concerned comes was not given up . 17 The concept so formulated constitutes one of the conditions for the recognition, by a Member State which regulates the activity in question, of the exercise of that activity in another Member State and thus makes it possible to ensure freedom of establishment and freedom to provide services in the activities covered by the directive . For that reason, and in order to apply the directive uniformly, it is necessary to give a Community interpretation to that concept . 18 It follows from the objectives and the scheme of the directive, as also from the wording itself of Article 3, that the directive was designed to make recognition, by a Member State which regulates the activity in question, of the exercise of that activity in another Member State conditional on the fact that such exercise was genuine and real and that it took place over a given number of consecutive years, that is to say, without any interruption other than that resulting from the events of everyday life . 19 The answer must therefore be that Article 3 of the directive must be interpreted as meaning that the words "the fact that the activity in question has been pursued in another Member State for ... ( x ) consecutive years ..." refer solely to the actual exercise of the activity in question for a period which must be unbroken except for reasons of ( short ) illness or ( normal ) holiday leave, and which excludes, in particular, the pursuit of an activity in another Member State, even if the business of the undertaking in the country from which the person concerned comes was not given up . 20 It is necessary to determine, as the Court is requested to do in the first question referred to it by the national court, whether, when authorization to carry on a trade in the host Member State is requested, under Article 4(2 ) of the directive, on the basis of a certificate drawn up by the State from which the beneficiary comes, the host State is bound by that certificate and obliged to grant authorization, even if the certificate contains manifest inaccuracies or oversights in connection with the actual period of time during which the professional activity was carried on in the Member State from which the beneficiary comes . 21 The certificate drawn up by the Member State from which the beneficiary comes, on the basis of the official description of the occupation in question previously supplied by the host Member State constitutes the document which enables freedom of establishment and freedom to provide services to be actually exercised in those Member States which prescribe certain conditions of qualification . 22 The host Member State which imposes such conditions is therefore, in principle, bound by the declarations contained in the certificate issued by the Member State from which the beneficiary comes, as that certificate would otherwise be deprived of its effectiveness . 23 In particular, the host Member State may not call in question the accuracy of particulars provided by the competent authority in the Member State from which the beneficiary comes concerning the activities in which that person was there engaged or their duration . 24 Where there are objective factors which lead the host State to consider that the certificate produced contains manifest inaccuracies, that State may, if it so wishes, approach the Member State from which the beneficiary comes with a view to requesting additional information . 25 However, in cases where it is established that a person covered by the directive has completed a period of insurance or employment in the territory of the host Member State, during the period of professional experience which, according to the certificate, that person has completed in the Member State from which he comes, then the host Member State is not bound by the certificate from the competent authority in the Member State from which that person comes with regard to the duration of the activity pursued in the latter State . 26 In those circumstances, the host Member State cannot be obliged to overlook matters which occurred within its own territory and which are of direct relevance to the real and genuine character of the period of professional activity completed in the Member State from which the beneficiary comes . Nor may the host Member State be refused the right to take measures in order to prevent the freedom of establishment and the freedom to provide services, which the directive is designed to assure, from being exploited by interested parties with the object of circumventing the rules relating to occupations which that State imposes on its own nationals ( see the judgments of 3 December 1974 in Case 33/74 van Binsbergen (( 1974 )) ECR 1299 and of 7 February 1979 in Case 115/78 Knoors (( 1979 )) ECR 399 ). 27 The answer must therefore be that the competent authority in the host Member State, when it is presented with an application for a licence to take up an activity on the basis of a certificate drawn up by the competent authority of the Member State from which the beneficiary comes pursuant to Article 4(2 ) of the directive, is not bound to grant the application automatically if the certificate produced contains a manifest inaccuracy inasmuch as it states that the person covered by the directive has completed a period of professional activity in the Member State from which he comes, when it is clear that during that same period the person in question has pursued his activities in the territory of the host Member State . Questions relating to the previous training of the beneficiary 28 The second and third questions, which may conveniently be examined together, seek essentially to ascertain whether the condition of recognition which, as expressed in Article 3(b ) of the directive, requires at least three years' previous training, must be understood as meaning that such training may have been received in a Member State other than that in which the activity was actually pursued, and, if so, whether it is necessary that such training give access to the pursuit of the occupation in the Member State where that training was received, or whether it is sufficient that it gives access, according to the authorities of the Member State in which the activity was actually pursued, to the pursuit of the occupation in the latter Member State . 29 It follows from the purpose of the directive that previous training, within the meaning of Article 3(b ), cannot be confined to training received in the Member State in which the activity is pursued . 30 It follows, secondly, from the scheme of the directive that the three years' previous training required under the aforementioned provision may be recognized by a host Member State, which regulates the activity in question, only in so far as that training had previously been recognized as valid by the Member State in which it was provided . 31 That Member State is the only one which is in a position to judge if the training is adequate for the activity in question and therefore to decide, if necessary through a competent professional body, whether or not to accord recognition to the diploma issued on completion of that training . 32 The answer must therefore be that the requirement set out in Article 3(b ) of the directive of 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, must be construed as meaning that the training may have been received in a Member State other than that in which the activities in question were actually pursued, within the meaning of that provision, and that, in such a situation, "previous training" in the sense of the abovementioned provision must be interpreted as meaning training which entitles the person in question to take up the occupation in the Member State where that training was received . Costs 33 The costs incurred by the Kingdom of the Netherlands, the United Kingdom and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . As these proceedings are, in so far as the parties to the main action are concerned, a step in the proceedings pending before the national court, the decision as to costs is a matter for that court . On those grounds, THE COURT ( Sixth Chamber ), in answer to the questions submitted to it by the College van Beroep voor het Bedrijfsleven, by decision of 15 February 1988, hereby rules : ( 1 ) Article 3 of Council Directive 64/427/EEC of 7 July 1964 must be interpreted as meaning that the words "the fact that the activity in question has been pursued in another Member State for ... ( x ) consecutive years" refer solely to the actual exercise of the activity in question for a period which must be unbroken except for ( short ) absences due to illness and ( usual ) holiday leave, and which excludes, in particular, the pursuit of an activity in another Member State, even if the business of the undertaking in the country from which the person concerned comes was not given up . ( 2)When an application is made to take up an activity on the basis of the production of a certificate drawn up by the competent authority of the Member State from which the person concerned comes, pursuant to Article 4(2 ) of the directive, the competent authority of the host Member State is not bound to grant the application automatically if the certificate produced contains a manifest inaccuracy inasmuch as it states that the person referred to by the directive has completed a period of professional activity in the Member State from which he comes, when it is clear that during the same period the person in question has pursued his activities in the territory of the host Member State . ( 3)The requirement set out in Article 3(b ) of the directive of 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, must be construed as meaning that the training may have been received in a Member State other than that in which the activities in question were actually pursued, within the meaning of that provision, and that, in such a situation, "previous training" in the sense of the abovementioned provision must be interpreted as meaning training which entitles the person in question to take up the occupation in the Member State where that training was received . © European Communities, 2001 All rights reserved BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII