Legal principles and points:
- If a national law impinges upon the free movement of services, it may still be able to be compatible with Article 56 TFEU, so long as they are pursuing an objective justification.
- The objective justification in this case was the overriding interest of public interest, which was that the law was preventing persons from escaping professional conduct rules by moving out of their ordinary state of residence.
Facts of the case
- A lawyer transferred his state of residency to Belgium from the Netherlands.
- Ordinarily under Dutch law, he would not be able to act as a legal representative in court, on the basis that only lawyers established in the Netherlands could do so.
- Consequently, under of the Dutch law, the lawyer could not argue before the courts in the Netherlands, as he was not established there.
Issues in Case 33/74 Van Binsbergen :
- The Court of Justice of the European Union (CJEU) was asked to determine the compatibility of the Dutch law requiring that legal representatives must be established in the Netherlands to argue in court with Article 56 TFEU.
Held by the CJEU:
- It was held that the law was compatible with Article 56, insofar that the law ensures that individuals are not able to subvert rules regarding professional conduct through relocation.
- This is especially important with regard to legal professionals, where significant issues concerning justice and ethics are paramount.
The CJEU stated specifically that:
- “Article 56 must be interpreted as meaning that the national law of a Member State cannot, by imposing a requirement as to habitual residence within that state, deny persons established in another Member State the right to provide services, where the provision of services is not subject to any special condition under the national law applicable” [I-1312]
- “The requirement that persons whose functions are to assist the administration of justice must be permanently established for professional purposes within the jurisdiction of certain courts or tribunals cannot be considered incompatible with the provisions of Article 56, where such requirement is objectively justified by the need to ensure observance of professional rules of conduct connected, in particular, with the administration of justice and with respect for professional ethics” [I-1310]
- Essentially, the key takeaway from this case is as follows: ordinarily, under Article 56, Member States cannot refuse persons established in another Member State the right to provide services, save in special circumstances such as where the profession is connected to the administration of justice. In those special circumstances, the restriction imposed can be regarded as objectively justified by the need to ensure compliance with professional rules and conduct.