OPINION OF ADVOCATE GENERAL LENZ
delivered on 15 December 1994 ( *1 )
A — Facts
1.
The joined cases to be considered here concern seven references for a preliminary ruling from the Tribunal de Grande Instance, Charleville-Mézières, each containing an identical question on the effects of national measures adopted in order to implement Directive 82/489/EEC. ( 1 ) The directive contains measures to facilitate the effective exercise of the right of establishment and the freedom to provide services in hairdressing.
2.
All the proceedings involve the criminal prosecution of persons charged with having operated hairdressing salons without either holding a hairdressing diploma (brevet professionel de coiffure) or a master's certificate (brevet de maîtrise) or employing a suitably qualified manager.
3.
Article 3 of Law No 46-1173 regulating the conditions of access to the trade of hairdresser (hereafter ‘the Law’) ( 2 ) provides that either the owner of a hairdressing salon or its manager must hold a diploma in hairdressing or a master's diploma. An exception is provided only for communes with less than 2000 inhabitants, which is clearly not relevant in the present case.
4.
Article 5 of the Law provides that infringements may be punished by fines and, if repeated, even by closing down the business. The prosecution of the defendants is based on Article 5 in conjunction with Article 3 of the Law.
5.
It can be discerned from the extremely short references for a preliminary ruling that the question is whether Law No 87-343 of 22 May 1987 adopted in implementation of Directive 82/489 leads to discrimination between European Community nationals and French nationals contrary to Community law. Law No 87-343 inserted Article 3-1 in the Law, which, implementing Article 2 of Directive 82/489, ( 3 ) provides that Community nationals are exempt from the requirements of Article 3 in so far as they have pursued the trade of hairdresser in another Member State under the following conditions:
(l)
The pursuit of that activity must have been genuine and lawful under the provisions governing the activity of hairdresser in the State where the activity was pursued.
(2)
Furthermore, it must have been pursued independently or as manager of a business during a period of six years. That period may be reduced to three years if the person concerned proves to the competent French authorities:
—
either that he has had previous training of at least three years for which he has received a diploma recognized by the State or the competent trade organization in accordance with the provisions governing access to the trade;
—
or he has pursued the trade as an employee for at least five years.
6.
In addition, in conformity with Article 2(2) of the directive, ( 4 ) age- and time-limits are laid down for those periods to be taken into account as periods during which the activity has been pursued. ( 5 )
7.
Law 87-343, which consists of only one Article, finishes by stating that its provisions are to apply for a transitional period until the training requirements for access to the occupation of hairdresser have been coordinated, which the Member States had undertaken to do.
8.
In Circular No 88010 of 27 July 1988 on the application of Law No 87-343 it is stated inter alia that the provisions of the Law of 22 May 1987 are to apply also to hairdressers of French nationality in so far as they have satisfied the requirements in a Member State of the EEC other than France.
9.
Without expressly mentioning it, the court malung the reference clearly assumes that the rules applying to Community nationals of Member States other than France are more favourable than those applying to French nationals who have no connection with those other Community States. It has referred the following question to the Court of Justice:
‘Do Articles 3 and 3-1 of Law No 46-1173 of 23 May 1946 constitute discrimination between European Community nationals and French nationals, having regard to Law No 87-343 of 22 May 1987 adopted in implementation of Council Directive No 82/489/EEC of 19 July 1982?’
B — Analysis
10.
If that question is interpreted literally, then it is a question concerning the interpretation of national law which the Court of Justice has no jurisdiction to answer. ( 6 ) However, the Court of Justice has consistently reformulated ambiguous questions referred for a preliminary ruling, or questions on the interpretation or compatibility of national law with Community law, in the context of problems under Community law. The Court endeavours, by answering the reformulated question, to provide the national court with the criteria which it needs in order to decide the dispute pending before it. ( 7 )
11.
The French Government suggests that the question should be reformulated. It argues that the question is intended to ascertain whether Directive 82/489 and Article 52 of the EC Treaty are to be interpreted to the effect that they preclude legislation of a Member State which results in discrimination between Community nationals and its own nationals.
12.
The Commission strives to view the question in its context. It states that in reality the question amounts to asking whether the French legislation, as it results from Articles 3 and 3-1 of the 1946 Law, gives rise to reverse discrimination against French nationals who have carried out their vocational training in France and, if so, whether Community law permits such a situation.
13.
In summary, in my opinion the question should be understood as follows: is reverse discrimination caused by Articles 3 and 3-1 of Law No 46-1173 compatible with Community law, in particular Directive 82/489 and Article 52 of the EC Treaty?
14.
Before answering the question referred for a preliminary ruling, ( 8 ) the Commission makes some observations on the state of Community legislation concerning the right of establishment and the freedom to provide services in hairdressing. The trade of hairdresser is not regulated in all Member States. Only some Member States require possession of a diploma for admission to that trade, while other Member States do not require any special knowledge. In that context, the Council adopted Directive 82/489 to facilitate the effective exercise of the right of establishment and freedom to provide services in hairdressing. The directive contains no definition of the trade of hairdresser for the purposes of Community law and accordingly does not coordinate vocational training. In that respect the directive is explicit. In the fourth and fifth recitals of its preamble it is stated:
‘It does not appear possible to proceed at this stage with coordination in this matter; ... such coordination is, however, an objective which it is desirable to attain as rapidly as possible.
Pending such coordination, it is nonetheless desirable and possible to facilitate the mobility of hairdressers within the Community, by recognizing as sufficient qualification for taking up the activities in question in host Member States which have rules governing the taking up of such activities, the fact that the activity has been pursued in a self-employed capacity or as manager of an undertaking in the Member State whence the foreign national comes for a reasonable and sufficiently recent period of time to ensure that the person concerned possesses professional knowledge equivalent to that required in the host Member State’.
15.
Each Member State therefore remains competent to determine the requirements applicable in its own territory with regard to training, access to the occupation and the use of occupational descriptions. Community
law only requires the pursuit of the occupation in another Member State to be recognized under the conditions of Article 2 of Directive 82/489. ( 9 )
16.
In the Commission's view, the position under French legislation is fully in accordance with those requirements of Community law, as the Commission has already stated in an answer to Mr Ernest Glinn's Parliamentary Question No 839/92. ( 10 )
17.
The French Government also refers to the recitals and the substantive provisions of the directive, which it compares with the position under French law, from which it concludes that the national measures are in conformity with Community law. Furthermore, it points out that there is no discrimination against French nationals and that their situation has been expressly regulated in Circular No 88010 in order to take account of the judgment of the Court of Justice. ( 11 ) However, the present cases exclusively concern situations which have no connection whatsoever with States other than France. Since a purely internal situation is involved, neither Directive 82/489 nor Article 52 of the EC Treaty apply.
18.
To answer the actual legal question posed, it must be borne in mind that under Community law as it presently stands the Member States are competent to adopt rules applicable to trades and professions in their own State. ( 12 ) In so far as there is no harmonization at Community level, differences between the legal systems of the Member States cannot affect freedom of establishment within the meaning of Article 52. The Court of Justice recently ruled to that effect in Case C-3 79/92 ( 13 ) with respect to technical rules relating to maritime transport:
‘...the difficulties which might arise for those undertakings from that situation did not affect freedom of establishment within the meaning of Article 52 of the Treaty. Fundamentally, those difficulties are no different in nature from those which may originate in disparities between national laws governing, for example, labour costs, social security costs or the tax system.’ ( 14 )
19.
Moreover, there are no obvious indications of incompatibility between Directive 82/489 — a directive purely concerned with recognition — and the French implementing provisions, from which a conflict between that Law and Community law could be deduced, which might lead to the the French provisions being adapted or interpreted in accordance with Community law.
20.
Article 52 of the EC Treaty could be applicable in so far as the persons concerned rely on its inherent prohibition of discrimination. ( 15 ) The principle of equal treatment in Article 52 primarily requires a Member State to accord the same treatment as it does to its own nationals. On the other hand, nationals of that State may only rely on Article 52, if their factual situation is relevant for the purposes of Community law. That is, for instance, the case where a national of a Member State has completed his training in another Member State or has pursued an occupation which he would like to turn to his account in the first Member State. In that context, nationals of the host State may therefore also derive rights under Community law. ( 16 ) That type of situation appears to be envisaged by Circular No 88010, which expressly permits French nationals to rely on the provisions adopted in implementation of Directive 82/489, in so far as their factual situation is relevant for the purposes of Community law.
21.
The position is different with regard to purely internal situations. The Court of Justice has consistently held that Community law, ( 17 ) in particular Article 52, ( 18 ) does not apply to purely internal situations.
22.
The indifference of Community law towards purely internal situations therefore prevents reliance on Community law in cases of so-called ‘reverse discrimination’, namely where nationals of a Member State are treated less favourably than those of other Member States. Generally, Community law gives rise to reverse discrimination only where it grants rights to Community nationals which go beyond the requirement that they be treated the same as nationals of the host State. ( 19 )
23.
However, in such cases, Community law does not preclude the application of the principle of equal treatment laid down in a Member State's national law. ( 20 )
24.
The approach which Community law adopts to the problem involved in this case is not called into question by the judgment in Joined Cases C-3 63/93 and C-407/93 to 411/93 Lancry and Others v Direction Generale des Douanes, ( 21 ) in which the Court was called on to decide on the compatibility of the Octroi de mer' with Community law. The Octroi de mer' is a charge on the bringing of goods into the French overseas departments, irrespective of their origin. With regard to the aspect of the case concerning the bringing of goods from metropolitan France to the overseas departments, both the Council and the Spanish Government argued that it was, to that extent, a situation which was confined entirely to a Member State, so that the provisions of primary Community law were not applicable. ( 22 )
25.
The Court did not adopt those arguments, but instead declared the Octroi de mer' in its entirety to be incompatible with Article 9 of the Treaty. The Court based its decision, first, on the unity of the customs territory, which would be affected just as much by a charge levied at a regional frontier as by a charge levied at a national frontier. ( 23 ) Secondly, the Court took the view that the charge was not a situation wholly confined to one Member State, because it was levied on all goods entering the overseas department concerned, irrespective of their origin. ( 24 )
26.
The position in the present case is fundamentally different. First, it does not concern a problem of the free movement of goods, which, in view of the uniform nature of the customs territory, requires the same conditions to exist throughout the Community. It is concerned instead with one aspect of the free movement of persons in the form of the right of establishment and the freedom to provide services. In so far as harmonizing provisions have not been adopted, differences in the rules of the Member States must be accepted as they are. ( 25 ) Moreover, there is no doubt that the potential discrimination occurs only in purely internal situations, since the relevant rules governing the trade do not have any effect outside the Member State.
C — Conclusions
27.
In the light of the foregoing I propose that the Court give the following answer to the question submitted by the national court:
Reverse discrimination caused by Article 3 and 3-1 of Law 46-1173 is a purely internal situation to which Community law is not applicable.
( *1 ) Original language: German.
( 1 ) Council Directive 82/489/EEC of 19 July 1982 (Ol 1982 L 218, p. 24).
( 2 ) Law No 46-1173 of 23 May 1946 regulating the conditions of access to the trade of hairdresser (JORF of 24 May 1946, p. 4539), amended by Law No 87-343 of 22 May 1987 implementing Directive 82/489/EEC (JORF of 23 Mav 1987 p. 5650).
( 3 ) This provides: ‘(1) Where in a Member State the taking up or pursuit of the activities referred to in Article 1 Ís subject to possession of general, commercial and professional knowledge and ability, that Member State shall accept as sufficient evidence of such knowledge and ability the fact that the activities in question have been pursued lawfully in another Member State for any of the following periods:
(a) six consecutive years either in a self-employed capacity or as a person responsible for managing an undertaking; or (b) three consecutive years either in a self-employed 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 a competent professional body as fully satisfying its requirements; or
(c) three consecutive years in a self-employed capacity, where the beneficiary can prove that he has pursued the occupation in question for at least five years in the capacity of employee.
The host Member State, in so far as it lays down different conditions of qualification for the activities of men's and women's hairdressîng, may require of nationals of other Member States that the activity in question has been pursued and vocational training received, in the same branch as that in which the beneficiary wishes to establish himself in the host Member State.
(2) In the cases referred to in paragraph 1(a) and (c), pursuit of the activity in question shall not have ceased more than 10 years before the date on which the application provided for in Article 3 is made. Activities in a self-employed capacity or as a person responsible for managing an undertaking as referred to in subparagraphs 1(a) and (c) must have been pursued after the age of 20.’
( 4 ) See footnote 3.
( 5 ) ‘(1) The pursuit of that activity must have been genuine and lawful under the provisions governing the activity of hairdresser in the State where the activity was pursued.
(2) Furthermore it must have been pursued independently or as a manager of a business during a continuous period of six years. That period shall be reduced to three years if the person concerned proves to the competent French authorities:
— either that he has had previous training of at least three years for which he has received a diploma recognized by the State or a competent trade organization in accordance with the provisions governing access to the trade in the State where it was pursued;
— or that he has pursued the trade as an employed person for at least five years. In assessing the duration of the period in which an occupation has been pursued independently or as a manager of a business, only activity after the age of 20 shall be taken into consideration, except where the person concerned proves that he has received at least three years training for which he has been awarded a diploma recognized under the abovementioned conditions.
(3) That activity shall not have ceased more than 10 years before the date on which the person concerned applies for dispensation from the requirement laid down in Article 3 that a diploma be held. However, that requirement shall not be imposed where the person concerned proves that he has received at least three years' training attested by the diploma referred to in paragraph (2) above’
( 6 ) Judgment in Case C-285/92 Twee Provinciën [1993] ECR I-6045, paragraph 10, and judgment in Case C-369/89 Piáleme and Others v BVBA Peelers [1991] ECR I-2971, paragraph 7.
( 7 ) Cases C-285/92 and C-369/89, cited above.
( 8 ) Its proper meaning being determined through interpretation.
( 9 ) Cf. footnote 3 above.
( 10 ) OJ 1992 C 247, p. 42.
( 11 ) Judgment in Cmc 115/78 Knoors v Secretary of State for Economic Affairs [1979] ECR 399.
( 12 ) That is also not affected by the existence of Council Directive 82/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25), which, according to Article 17, was to be transposed before 18 June 1994. Even mutual general recognition of diplomas would not remove the need for French nationals to ctbtain a diploma in order to work in France as a self-employed person.
( 13 ) Judgment in Case C-379/92 Peralta [1994] ECR I-3453.
( 14 ) See paragraph 34 of the judgment in Peralta.
( 15 ) Judgment in Case 90/76 Van Ameyde v UCI [1977] ECR 1091, paragraph 27.
( 16 ) Cf. Case 115/78 Knaors, cited above.
( 17 ) Cf. the judgment in Case 175/78 Saunders [1978] ECR 1129, paragraph 11 et seq.; judgment in Case 44/84 Hurd v HM Inspector of Taxes [1986] ECR 29, paragraph 55 et seq.; judgment in Case C-41/90 Höfner and Eher [1991] ECR I-1979, paragraph 37.
( 18 ) Judgment in Case 204/87 Bekaert [1988] ECR 2029, paragraph 12; judgment in Joined Cases C-54/88, C-91/88 and C-14/89 Nino and Others [1990] ECR I-3537, paragraph 11; judgment in Joined Cases C-330/90 and C-331/90 Lopez Brea and Hidalgo Palacios [1992] ECR I-323, paragraph 9; judgment in Case C-60/91 Batista Morais [1992] ECR I-2085, paragraphs 7 to 9; see also the judgment in Case C-112/91 Werner v Finanzamt Aachen-Innenstadt [1993] ECR I-429.
( 19 ) For example, the right of members of a family who are 33 nationals of nonmember countries to reside and remain; cf. the judgment in Joined Cases C-297/88 and C-197/89 Dzodzi v Belgian State [1990] ECR I-3783, or the recognition of the lawful pursuit of a trade or profession in a Member State as proof of qualifications.
( 20 ) Cf. the judgment in Case C-332/90 Steen v Deutsche Bundespost [1992] ECR I-341 and the judgment in Case C-132/93 Steen U [1994] ECR I-2715.
( 21 ) [1994] ECR I-3957.
( 22 ) Cf. paragraph 23 of the judgment.
( 23 ) Cf. paragraphs 25 et seq. of the judgment.
( 24 ) Cf. paragraph 30 ct scq. of the judgment.
( 25 ) Cf. for example, the judgment in Perulta, cited above.
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