Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 10 September 2020 (1)

Joined Cases C‑407/19 and C‑471/19

Katoen Natie Bulk Terminals NV,

General Services Antwerp NV

v

Belgische Staat

(Request for a preliminary ruling from the Raad van State (Council of State, Belgium))

and

Middlegate Europe NV

v

Ministerraad,

interveners:

Katoen Natie Bulk Terminals NV,

General Services Antwerp NV,

Koninklijk Verbond der Beheerders van Goederenstromen (KVBG) CVBA,

MVH Logistics en Stuwadoring BV

(Request for a preliminary ruling from the Grondwettelijk Hof (Constitutional Court, Belgium))

(Reference for a preliminary ruling – Article 49 TFEU – Freedom of establishment – Pursuit of port activities – Dock workers (dockers) – Access to the profession and recruitment – Detailed rules for the recognition of dockers – Dock workers included in the pool – Direct engagement of dockers – Limit on the duration of the employment contract – Mobility of dockers between port areas – Logistics workers – Provisional application of a national rule incompatible with EU law)

1.        The loading and unloading of ships in ports was once the job of dockers usually working only intermittently and under harsh conditions. As a result of their struggle to improve those conditions, and the support of a number of well-organised trade unions, many Member States adopted specific rules to regulate that employment relationship.

2.        Common to the various bodies of State legislation so enacted was the fact that they reserved those tasks exclusively to dockers forming part of a clearly defined pool (‘recognised’ dockers, according to the term predominantly used in these cases). It was these dockers that undertakings providing port services were necessarily obliged to use.

3.        Cargo handling and all other dock duties have changed in line with developments in technology but the employment legislation which, in various guises, led to the ‘monopoly’ exercised by recognised dockers is, to a greater or lesser extent, still in place in certain Member States. (2)

4.        In 2014, (3) the Court held the Spanish employment legislation on dock work, which was based on the traditional model in this field, to be incompatible with the freedom of establishment provided for in Article 49 TFEU.

5.        Both before and after that judgment, the EU legislature was unable, despite the Commission’s attempts, to harmonise those aspects of the rules governing the provision of port services that deal with labour relations and the social conditions of dock workers. (4)

6.        These two references for a preliminary ruling will enable the Court to determine whether the Belgian legislation (which continues to apply special rules of employment to the recruitment of dockers) is compatible with the freedom of establishment. In the judgment it gives, it will at the same time be able to lay down additional criteria for ascertaining whether the rules governing dock workers are subject to the requirements of EU law, in particular, to the freedom of establishment. Ports are not areas that sit outside the law. (5)

I.      Legal framework

A.      EU law

7.        Article 49 TFEU provides:

‘Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 54, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital’.

B.      Belgian law

1.      Wet van 8 juni 1972 betreffende de havenarbeid (6)

8.        The following are now the material articles of this Law, which has been amended on successive occasions:

‘Article 1

No person may order dock work in port areas to be performed by any workers other than recognised dockers.

Article 2

The application of this Law shall be governed by the definition of port areas and dock work as established by the King pursuant to Articles 35 and 37 of the Law of 5 December 1968 on collective labour agreements and Joint Committees.

Article 3

The King shall determine the conditions and detailed rules for the recognition of dock workers, on the advice of the Joint Committee responsible for the port area concerned.

[…]

Article 3a

On the advice of the Joint Committee responsible for the port area concerned, the King may compel employers employing dock workers in that area to join an employers’ organisation approved by him which, in its capacity as agent, fulfils all of the obligations incumbent on employers employing dock workers under the legislation on individual and collective work and under social security legislation.

In order to be approved, the employers’ organisation referred to in the preceding paragraph must already have the majority of the employers in question among its members’.

2.      Koninklijk besluit van 12 januari 1973 tot oprichting en vaststelling van de benaming en van de bevoegdheid van het Paritair Comité voor het Havenbedrijf (7)

9.        Article 1 provides:

‘A joint committee, to be known as the “Joint Ports Committee” (which shall be responsible for workers in general and their employers), is hereby established for the benefit of:

All workers and their employers who, in port areas:

A.      carry out dock work as a principal or ancillary activity, that is to say, the handling in any form of goods transported by sea-going ship or inland waterway vessel, by railway goods wagon or lorry, and the ancillary services connected with those goods, whether such operations take place in docks, on navigable waterways, on quays or in establishments engaged in the importation, exportation and transit of goods, as well as the handling in any form of goods transported by sea-going ship or inland waterway vessel to or from the quays of industrial establishments.

The following definitions shall apply:

1.      Handling of goods:

a)      goods: all goods, containers and means of transport associated therewith, with the exception only of:

–        bulk transport of oil, (liquid) petroleum products and liquid raw materials for refineries, the chemical industry and storage and processing activities in oil installations;

–        fish brought in by fishing vessels;

–        pressurised liquid gases in bulk.

b)      handling: loading, unloading, stowing, unstowing, restowing, unloading in bulk, unmooring, classifying, sorting, sizing, stacking, unstacking and assembling and disassembling individual consignments.

2.      Ancillary services relating to such goods: marking, weighing, measuring, cubing, checking, receiving, guarding (with the exception of security services provided by undertakings falling within the responsibility of the Joint Committee on Security and/or Surveillance Services on behalf of undertakings overseen by the Joint Ports Committee), delivering, sampling and sealing, lashing and unlashing.

[…]’

3.      Koninklijk besluit van 5 juli 2004 betreffende de erkenning van havenarbeiders in de havengebieden die onder het toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid (8)

10.      This originally imposed an obligation to be recognised on all dockers carrying out dock work within the meaning of the 1973 Royal Decree. Following recognition, such dockers would be assigned to the general pool or to logistics.

11.      The Royal Decree of 5 July 2004 was amended by the Royal Decree of 10 July 2016, adopted following the letter of formal notice issued to Belgium by the Commission on 28 March 2014. (9)

12.      As a result of that amendment, the new version of Royal Decree of 5 July 2004 provides:

‘Article 1

(1)      In each port area, dock workers shall be recognised by the jointly constituted committee, hereinafter referred to as ‘the Administrative Committee’, established within the Joint Subcommittee responsible for the port area concerned.

The Administrative Committee shall be comprised of:

1.      a chair and a vice-chair;

2.      four full members and four substitute members appointed by the employers’ organisations represented on the Joint Subcommittee;

3.      four full members and four substitute members appointed by the workers’ organisations represented on the Joint Subcommittee;

4.      one or more secretaries.

The provisions of the Royal Decree of 6 November 1969 determining the general rules of operation of Joint Committees and Joint Subcommittees, and the special rules laid down in Article [10] of this Royal Decree shall apply to the operation of the Administrative Committee.

(2)      An application for recognition shall be made in writing to the competent Joint Subcommittee using a template provided for that purpose.

The application shall indicate whether it is made with a view to employment inside or outside the pool.

(3)      By way of derogation from the first subparagraph of paragraph (1), in the case of workers who carry out work, within the meaning of Article 1 of the [Royal Decree of 12 January 1973], on sites where goods, in preparation for their onward distribution or dispatch, undergo processing indirectly conferring demonstrable added value, and who hold a “logistics workers’” safety certificate, that safety certificate shall count as recognition within the meaning of the [Law of 8 June 1972].

A safety certificate shall be requested by an employer who has signed an employment contract with a worker for the performance of activities such as those referred to in the preceding paragraph and shall be issued on presentation of the worker’s identity card and employment contract. The details of this procedure shall be laid down by collective labour agreement.

Article 2

(1)      The dock workers referred to in the first subparagraph of Article 1(1) shall, on being granted recognition, be included, or not, in the dock workers’ pool.

Recognition with a view to inclusion in the pool shall be based on the demand for labour.

(2)      Dock workers included in the pool shall be recognised for a fixed or indefinite period of time.

The detailed rules governing the duration of the recognition shall be laid down by collective labour agreement.

(3)      Dock workers not included in the pool shall be engaged under an employment contract as provided for in the Law of 3 July 1978 on employment contracts.

The duration of the recognition shall be confined to the duration of the employment contract.

[…]

Article 4

(1)      Recognition as a dock worker for the purposes of the first subparagraph of Article 1(1) shall be subject to the following conditions:

[The dock worker must]

[…]

2.      be declared medically fit for dock work by the external service for prevention and protection at work to which the employers’ organisation appointed as agent under Article 3a of the [1972 Law] is affiliated;

3.      have passed the psychotechnical tests conducted by the body appointed for that purpose by the employers’ organisation appointed as agent under Article 3a of the [1972 Law]; the purpose of those tests shall be to examine whether the applicant dock worker is of sufficient intelligence and has the character and motivation necessary to enable him, following training, to perform the role of dock worker;

[…]

6.      have attended, for a period of three weeks, preparatory courses on safe working and the acquisition of a professional qualification, and have passed the final test. The competent authority may define the quality criteria that must be met by the training, which may be freely delivered;

7.      not have been the subject, during the last five years, of a measure withdrawing recognition as a dock worker on the basis of Article 7, first paragraph, point 1 or 3, of this Decree […];

8.      in the case of the recognition of a dock worker as referred to in Article 2(3), also have an employment contract.

(2)      Recognition of a dock worker shall be valid in each port area as defined by the King pursuant to Articles 35 and 37 of the Law of 5 December 1968 on collective labour agreements and Joint Committees.

The terms and conditions under which a dock worker may be employed in a port area other than that in which he is recognised shall be laid down by collective labour agreement.

The employers’ organisation appointed as agent under Article 3a of the [1972 Law] shall continue to act as agent in the event that the dock worker is employed outside the port area in which he has been recognised.

(3)      Dock workers who are able to demonstrate that they meet equivalent conditions in respect of dock work in another Member State of the European Union shall no longer be subject to the same conditions under this Royal Decree.

(4)      Applications for recognition and renewal shall be made to, and processed by, the Administrative Committee.

[…]

Article 13/1

(1)      the employment contract provided for in the second subparagraph of Article 2(3) shall be concluded for an indefinite period;

(2)      the employment contract provided for in the second subparagraph of Article 2(3) shall be concluded for a minimum period of 2 years;

(3)      the employment contract provided for in the second subparagraph of Article 2(3) shall be concluded for a minimum period of 1 year;

(4)      the employment contract provided for in the second subparagraph of Article 2(3) shall be concluded for a minimum period of 6 months.

[…]

Article 15/1

For the purposes of this Royal Decree:

(1)      dock workers recognised on the basis of the second paragraph of the former Article 2 shall be recognised by operation of law as dock workers included in the pool in accordance with Article 2(1), without prejudice to the application of Articles 5 to 9 of this Royal Decree;

(2)      dock workers recognised on the basis of the third paragraph of the former Article 2 shall be treated by operation of law as logistics workers as referred to in Article 1(3), without prejudice to the application of Articles 5 to 9 of this Royal Decree.

[…]’

II.    Disputes and questions referred

A.      Case C‑407/1[9]

13.      Katoen Natie Bulk Terminals NV (‘Katoen’) (10) and General Services Antwerp NV (‘General Services’) (11) are two companies established in Belgium whose businesses, at home and abroad, include port operations.

14.      On 5 September 2016, those two companies challenged the Royal Decree of 10 July 2016 before the Raad van State (Council of State, Belgium). They claimed that it should be annulled because, in their opinion, it infringed the fundamental freedoms of the European Union internal market and the rules on free competition, (12) and, although appearing to seek to liberalise the labour market, it actually reaffirmed or introduced up to seven unnecessary and disproportionate restrictions in the rules on dock duties.

15.      Prominent among those restrictions were the following:

-      The requirement for all dock workers not devoted to logistical activities to be recognised by a joint administrative committee comprised of employers’ organisations and trade unions, which has the effect of creating a closed shop.

-      The bodies that determine the medical fitness of applicant dockers, the psychotechnical conditions they must meet and the professional training courses they must complete are controlled by the local employers’ organisations and the trade unions in each area.

-      The liberalisation of access to the market in dock work for workers not included in the pool (those who enter into contracts directly with an employer) is purely theoretical: the recognition afforded to those workers is limited to the duration of their contract and must be re-applied for whenever a new contract is signed.

16.      Those restrictions, they went on to say, went beyond what was necessary in order to attain the objectives pursued in the general interest and are unjustified. The fact that the European Commission terminated the infringement proceedings for political reasons and reserved the right to keep the situation under review, does not diminish the incompatibility of the Royal Decree with EU law.

17.      The Belgian Government denies that the Royal Decree of 10 July 2016 infringes the freedom of establishment or other freedoms. Neither the letter of formal notice from the Commission nor the case-law of the Court of Justice cited by the applicant companies provides sufficient evidence of any infringement. The Commission terminated the proceedings not for political reasons but because the concerns it had expressed were addressed.

18.      In the opinion of the Belgian Government, there is no direct or indirect discrimination because all companies, whatever their place of establishment, are subject to the same rules. Companies from other Member States are treated in the same way as national companies.

19.      Finally, the Belgian Government submits that, if the restrictions complained of did exist (which it denies), the legislation on dock work, of which the Royal Decree of 10 July 2016 forms part, is necessary and proportionate, and sufficiently justified, since:

-      it guarantees a high level of safety for dock workers;

-      it provides for adequate flexibility, since dock workers are (or can be) engaged in such a way as to take into account the constantly fluctuating labour supply; and

-      it guarantees the quality and safety of dock work.

20.      It was in those circumstances that the Raad van State (Council of State) referred the following four questions to the Court for a preliminary ruling:

‘(1)      Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule laid down in Article 1 of Royal Decree of 5 July 2004 […], read in conjunction with Article 2 of […] Royal Decree of 5 July 2004, namely, the rule that the dockers referred to in Article 1(1), first subparagraph, of the aforementioned Royal Decree of 5 July 2004, upon their recognition by the administrative commission, composed jointly, on the one hand, of members designated by the employer organisations represented in the relevant joint subcommittee and, on the other hand, of members designated by the employee organisations represented on the joint subcommittee, are either included in the pool of dockers or are not included in that pool, whereby recognition for the purpose of inclusion takes into account the need for manpower and also takes into account that a decision-making deadline has not been prescribed for that Administrative Commission and where provision has been made only for a jurisdictional appeal against its decisions regarding recognition?

(2)      Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule introduced by Article 4(1), subparagraphs 2, 3, 6 and 8 of the Royal Decree of 5 July 2004 as replaced or inserted respectively by Article 4, subparagraphs 2, 3, 4 and 6 of the contested Royal Decree of 10 July 2016, namely, the rule that lays down as a condition for recognition as a docker that the worker (a) has been declared medically fit by the external service for prevention and protection at the work with which the employer organisation designated as an agent under Article 3a of the Law of 8 June 1972 is associated, […]; (b) has passed the psychotechnical tests conducted by the body designated for that purpose by the recognised employer organisation designated as an agent under the same Article 3a of the Law of 8 June 1972; (c) has attended for three weeks the preparatory courses on safety at work and the attainment of professional competence and has passed the final test and (d) already be in possession of an employment contract in the case of a docker who is not included in the pool, which, read in conjunction with Article 4(3) of the Royal Decree of 5 July 2004, means that foreign dockers must be able to prove that they satisfy comparable conditions in another Member State so that, for the purpose of the application of the contested rule, they are no longer subject to those conditions?

(3)      Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) of the TFEU, be interpreted as precluding the rule introduced by Article 2(3) of the Royal Decree of 5 July 2004, as replaced by Article 2 of the contested Royal Decree of 10 July 2016, namely, the rule whereby the dockers who are not included in the pool and who are therefore directly recruited by an employer on an employment contract in accordance with the Wet van 3 juli 1978 “betreffende de arbeidsovereenkomsten” (Law of 3 July 1978 on employment contracts) have the duration of their recognition limited to the duration of that employment contract so that each time a new recognition procedure must be started?

(4)      Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 13/1 of the Royal Decree of 5 July 2004, as inserted by Article 17 of the Royal Decree of 10 July 2016, namely, the transitional measure whereby the employment contract referred to in Question 3 must initially be concluded for an indefinite period; from 1 July 2017 for at least two years; from 1 July 2018 for at least one year; from 1 July 2019 for at least six months; and from 1 July 2020 for a period to be freely determined?

(5)      Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule laid down in Article 15/1 of the Royal Decree of 5 July 2004, as inserted by Article 18 of the Royal Decree of 10 July 2016, namely, the (transitional) measure whereby the dockers recognised under the old rule are automatically recognised as dockers in the pool, as a result of which the possibility of direct employment (on a permanent contract) of those dockers by an employer is hindered and the employers are prevented from engaging and retaining qualified workers by concluding a permanent contract with them directly and offering them job security in accordance with the general rules of labour law?

(6)      Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 4(2) of the Royal Decree of 5 July 2004, as replaced by Article 4(7) of the Royal Decree of 10 July 2016, namely, the rule whereby a collective labour agreement determines the conditions and detailed rules under which a docker can be employed in a port area other than the one where he was recognised, thereby limiting the mobility of workers between port areas without the regulator itself providing clarity as to what those terms and conditions might be?

(7)      Should Article 49, 56, 45, 34, 35, 101 or 102 of the TFEU, whether or not read in conjunction with Article 106(1) TFEU, be interpreted as precluding the rule introduced by Article 1(3) of the Royal Decree of 5 July 2004, as replaced by Article 1, subparagraph 2, of the Royal Decree of 10 July 2016, namely, the rule whereby (logistics) workers who perform work within the meaning of Article 1 of the Koninklijk Besluit van 12 januari 1973 ‘tot oprichting en vaststelling van de benaming en van de bevoegdheid van het Paritair Comité voor het Havenbedrijf’ (Royal Decree of 12 January 1973 establishing the Joint Ports Committee and determining its appointment and powers) at locations where goods which, in preparation for their further distribution or dispatch, undergo a transformation that leads indirectly to demonstrable added value, must have a security certificate, whereby that security certificate constitutes recognition within the meaning of the Law of 8 June 1972 organising dock work, taking into account that that certificate is requested by the employer who has signed an employment contract with a worker for activities in that sense to be performed and issued upon presentation of the employment contract and identity card and whereby the detailed rules of the procedure to be followed are laid down by collective agreement, without the regulator providing clarity on that point?’

B.      Case C‑471/19

21.      Middlegate Europe is a transport undertaking established in Zeebrugge (Belgium) that is active throughout Europe. As part of its international road transport business, its workers use a tugmaster to place on the quay at the port of Zeebrugge, inter alia, trailers ready for shipment to the United Kingdom and Ireland.

22.      During an inspection carried out on 12 January 2011, the police compiled an official report against Middlegate Europe for infringement of Article 1 of the 1972 Law (performance of dock work by a non-recognised dock worker). By decision of 17 January 2013, an administrative fine of EUR 100 was imposed on it.

23.      Middelgate Europe challenged that penalty before the arbeidsrechtbank te Gent, afdeling Brugge (Ghent Labour Court, Bruges Division, Belgium), which held the action to be unfounded. The arbeidshof te Gent (Higher Labour Court, Ghent, Belgium) also dismissed the appeal lodged against the judgment at first instance.

24.      Middlegate Europe lodged an appeal in cassation before the Hof van Cassatie (Court of Cassation, Belgium), claiming that Articles 1 and 2 of the 1972 Law infringe Articles 10, 11 and 23 of the Belgian Constitution (principle of equality and the freedom of commerce and industry enjoyed by undertakings).

25.      In those proceedings, the Hof van Cassatie (Court of Cassation) raised a question of constitutionality with the Grondwettelijk Hof (Constitutional Court, Belgium). The latter court considers it necessary, in order to be able to answer that question, to obtain a preliminary ruling from the Court of Justice, having had cited before it, both in favour and in opposition, legal grounds relating to the compatibility of domestic law with EU law.

26.      In particular, it has referred the following two questions for a preliminary ruling:

‘(1)      Should Article 49 of the Treaty on the Functioning of the European Union, whether or not read in conjunction with Article 56 of that Treaty, with Articles 15 and 16 of the Charter of Fundamental Rights of the European Union and with the principle of equality, be interpreted as precluding national legislative provisions that oblige persons or undertakings which, in a Belgian port area, wish to engage in dock-work activities within the meaning of the […] 1972 Law […] — including activities which, strictly speaking, are unrelated to the loading and unloading of ships — to have recourse solely to recognised dockers?

(2)      If the first question is answered in the affirmative, may the Grondwettelijk Hof (Constitutional Court) provisionally maintain the effects of Articles 1 and 2 of the [Law of 8 June 1972 organising dock work] in order to prevent legal uncertainty and social discontent and to enable the legislature to bring those provisions into line with the obligations arising from EU law?’

III. Procedure before the Court of Justice

27.      Following the submission of observations by Katoen, the Belgian Government and the Commission, it was decided to join Cases C‑407/19 and C‑471/19.

28.      The hearing that was due to be held on 23 April 2020 was replaced by the questions for written response which the Court put to the parties and to which the latter replied.

IV.    Preliminary clarifications

A.      A purely internal situation?

29.      As the disputes which have given rise to these references concern situations with no cross-border element to them, one might ask [as, indeed, the Raad van State (Council of State) has] (13) whether the Court has jurisdiction to answer the questions referred for preliminary ruling.

30.      In principle, the provisions of the TFEU on the freedoms of movement, as well as the acts adopted in implementation thereof, cannot be applied to situations which are confined in all respects within a single Member State. (14)

31.      By way of exception to that rule, the Court has held that, where the referring court makes a request for a preliminary ruling in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, the decision of the referring court that will be adopted following the Court’s preliminary ruling will also have effects on the nationals of other Member States, which justifies the Court giving an answer to the questions put to it in relation to the provisions of the Treaty on the fundamental freedoms, even though the dispute in the main proceedings is confined in all respects within a single Member State. (15)

32.      In these cases, the referring court is under an obligation to justify the need for a preliminary ruling on interpretation from the Court. (16) The Raad van State (Council of State) has discharged that obligation inasmuch as it has stated that:

-      The Belgian provision at issue is applicable without distinction to any operator, whatever its nationality, that attempts to pursue economic activities linked to ports.

-      That legislation relates to the Belgian port areas of Antwerp and Zeebrugge, which are open to international transport in a highly competitive arena on account of their proximity to other ports in the so-called ‘Hamburg-Le Havre range’.

-      There is a clear cross-border interest in those port areas, inasmuch as they are home to the pursuit of many import and export activities involving international operators looking to take on dock workers from other Member States to do jobs for them.

33.      I take the view, in the light of those considerations, that the Raad van State (Council of State) has adequately demonstrated that, despite the fact that the situation in question is purely internal, the dispute may exhibit a cross-border dimension sufficient to necessitate input from the Court in the form of a preliminary ruling.

B.      Applicability of EU law

34.      In Case C‑407/19, the Raad van State (Council of State) raises up to seven questions relating to Articles 49, 56, 45, 34, 35, 101 and 102 TFEU, whether or not read in conjunction with Article 106(1) TFUE. Those articles are cited with the aim of ascertaining whether the contested Belgian rules are compatible with them.

35.      However, the order for reference does not explain why an interpretation of all of those provisions of EU primary law is needed.

36.      This is true in particular of the free movement of goods and, to a lesser extent, the freedom to provide services and with the free movement of workers (the order contains only the odd reference to these two freedoms). The national court’s reasoning a quo centres on the freedom of establishment, which is understandable, given that the dispute concerns the restrictions which the Belgian rules on the recruitment of dockers entail for undertakings from other Member States that wish to establish themselves and provide services in Belgian ports. (17)

37.      Neither does the order for reference contain explanations sufficient to enable the Court to interpret the competition rules applicable to undertakings (Articles 101 and 102 TFEU) or to public undertakings or undertakings enjoying special or exclusive rights (Article 106(1) TFEU) and to determine whether the national legislation at issue is compatible with those articles. (18)

38.      I should add here that the Court has already examined the Belgian legislation on dock workers in the light of Article 106 TFEU in conjunction with Articles 101 and 102 TFEU, in the judgment in Becu and Others. (19) It held at that time that those provisions do not confer on individuals the right to oppose the application of legislation of a Member State which requires them to engage only recognised dock workers such as those referred to in the 1972 Law and to pay those dockers remuneration far in excess of the wages of their own employees or the wages they pay to other workers. (20)

39.      Consequently, it follows from the content of the orders for reference that it is, in essence, Article 49 TFEU that falls to be interpreted, so as to determine whether it is infringed by national legislation exhibiting the characteristics described above. Account will also have to be taken of Article 45 TFEU, concerning the free movement of workers.

C.      Primary law or harmonising provisions?

40.      The EU legislature did not harmonise the provision of port services until the adoption of Regulation 2017/352. (21) Previous attempts (in 2004 and 2007) to adopt directives in this field had met with failure, due in large part to the opposition of dockers’ trade unions to the introduction of self-handling. (22)

41.      It was this arrangement for loading and unloading at ports, whereby these operations are carried out by the shipping company’s own workers (or by non-recognised workers engaged directly by the shipowners or the undertakings providing port services), that was provided for in the Commission’s proposal. (23)

42.      As I have already noted, (24) Regulation 2017/352 excluded from its scope the core employment-related aspects of port services: Article 9(1) thereof states that that regulation ‘shall not affect the application of the social and labour rules of the Member States’. (25) It thus refrained from legislating on key aspects of the legal regime applicable to dockers. (26) It is for this reason that State rules in this field must be assessed in the light of EU primary law itself.

43.      An interpretation of Directive 2005/36/EC, concerning the recognition of professional qualifications, (27) might also be relevant, notwithstanding that it is not cited in the orders for reference.

D.      Connection between the two references for a preliminary ruling

44.      The two references (C‑407/19 and C‑471/19) are closely linked and it was for this reason that they were joined. However, the backgrounds against which they were made are different: the Grondwettelijk Hof (Constitutional Court) determines whether laws are compatible with the Belgian Constitution, while the Raad van State (Council of State) reviews the legality of provisions of lower rank than a law.

45.      Case C‑471/19 is concerned with the compatibility of two articles of the 1972 Law with Article 49 TFEU, but in the context of facts which occurred in 2011, when the Royal Decree of 5 July 2004 was in force without the amendments made to it in 2016.

46.      Thus, the Grondwettelijk Hof (Constitutional Court) asks about the compatibility with Article 49 TFEU (and Articles 15 and 16 of the Charter) of Articles 1 and 2 of the 1972 law in themselves and without regard to their regulatory implementation. (28)

47.      In Case C‑407/19, the question of compatibility arises in relation to regulatory provisions introduced by the Royal Decree of 10 July 2016.

V.      First question in Case C‑471/19

48.      I propose to look, in the first place, at the compatibility with Article 49 TFEU of the national law that restricts eligibility to be engaged to perform dock work to ‘recognised’ workers. I shall turn next to Articles 15 and 16 of the Charter. The application of the principle of equal treatment is covered by Article 49 TFEU and does not therefore need to be addressed separately.

A.      Limiting the engagement of port workers as a restriction of the right of establishment

49.      The issue here is the exercise of the right of establishment (Article 49 TFEU) of undertakings that wish to carry on activities in Belgian ports but want to use workers other than recognised dockers in order to do so. These alone, as I have already said, are authorised to carry out dock work.

50.      It is the Court’s settled case-law that any national measure which, albeit applicable without discrimination on grounds of nationality, prohibits, hinders or renders less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the Treaty constitutes a restriction within the meaning of Article 49 TFEU. (29)

51.      The Belgian legislation does not directly discriminate on grounds of nationality, since it applies equally to Belgian undertakings and to undertakings from other Member States that wish to establish themselves and provide services in port areas. All of those undertakings, however, must all employ recognised dockers to carry out their activities and may not use their own (or any other non-recognised) workers.

52.      That rule therefore has adverse consequences for undertakings from other Member States that wish to establish themselves in Belgian port areas, since they do not have the freedom to hire workers to perform their tasks by other means. In the same way, it is liable to prevent or deter undertakings from locating themselves in Belgian ports in order to carry on a business activity there. (30)

53.      The referring court is of the same opinion, as am I. It recognises that the obligation to recruit dockers from the dock worker pool on terms that are beyond the control of the port undertakings, and the obligation to join an organisation representing employers, have the effect of preventing or disincentivising the establishment of undertakings from other Member States in Belgian port areas. (31)

54.      It is readily apparent from the judgment in Commission v Spain that that type of measure constitutes a restriction on the freedom of establishment. (32) I do not therefore see any need for me to comment further in this regard.

B.      Justification of the restriction

55.      Restrictions on the freedom of establishment that are applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining it. (33)

56.      In its order, the referring court mentioned the same overriding reasons relating to the general interest that were cited by the Belgian Government in its observations. (34) They are:

-      The need to guarantee safety at ports and prevent accidents at work.

-      The need for access to a specialised workforce combining productivity, service and competitiveness, given the fluctuating demand for labour in port areas.

-      The guarantee of equal treatment as regards conditions of employment for dock workers.

57.      As regards port safety, the Court has recognised this as an overriding requirement in the general interest. (35) In this case, the reference to port safety is linked to the prevention of accidents, inasmuch as the activity in question is one that entails considerable risk.

58.      On the dangerous nature of dock work, the Belgian Government and the applicant undertakings put forward opposing views:

-      The Belgian Government argues that the risk of accidents is present not only in the loading and unloading of ships per se, but also in the various activities inextricably linked to those operations. (36)

-      The applicants, on the other hand, state that technological developments have made dock work much less dangerous. (37) In their opinion, the Belgian authorities treat stowage, which is the most complex activity, in the same way as other activities less exposed to risk (such as the loading and unloading of lorries and trains arriving into port or the storage and stacking of goods in a warehouse) which are carried out beyond the port perimeter by ordinary workers who are not expected to obtain prior recognition. In their opinion, the overlap of activities in ports would not make them more dangerous.

59.      While it is for the referring court to make a final adjudication on these arguments, I nonetheless do not discount the possibility that, even today, dock work continues to entail a level of risk sufficient to warrant a decision on the part of the authorities of a Member State to adopt rules to ensure safety within port perimeters.

60.      The International Labour Organisation (‘ILO’) has drafted a code of practice which highlights the dangerous nature of dock work. (38) While recognising the improvements that have been made in this field, it states that ‘port work is still regarded as an occupation with very high accident rates’. (39)

61.      As an objective geared towards the prevention of accidents, port safety may be classified as an overriding requirement in the general interest. As such, it might justify restrictions on access to port work, including restrictions relating to the recruitment of the persons that carry out that work.

62.      On the protection of workers, the Court has also recognised this, in general, as one of the overriding reasons in the general interest that may warrant restrictions on the freedom of establishment. (40)

63.      The Belgian Government cites protection of the working conditions of dock workers who are already recognised and form part of the pool, as opposed to those who have not benefited from such recognition and have not joined the pool. That argument does not strike me as being a sufficient basis on which to allow the protection of those workers to legitimise a restriction on the recruitment of dock workers and thus give preference to one group over the other, as provided for in the 1972 Law.

64.      Some support for this type of measure might be found in Convention 137 on Dock Work, adopted in Geneva on 25 June 1973 under the auspices of the ILO (‘Convention No 137’), (41) Article 3(2) of which gives registered dock workers priority of engagement for the performance of dock work. The Convention contains provisions protecting registered dockers of this type.

65.      Nonetheless, Convention No 137 is an ILO technical convention the status of which is provisional because it has been ratified by only 25 countries (in fact, only 24, following its termination by the Netherlands in 2006), including 11 EU Member States, of which Belgium is not one. (42) It is also a convention that is no longer up to date, on account of technological developments in dock work, and whose mechanism for the registration of dock workers has at times operated as a reservation system or occupational monopoly advantageous to only one group of workers. (43)

66.      The European Union is not a party to Convention No 137 and the Court did not comment on the impact of that convention on EU law in the judgment in Commission v Spain, (44) despite the fact that the Kingdom of Spain cited it as justification for its national rules on the engagement of dock workers, which were ultimately declared incompatible with Article 49 TFEU. The provisional status of Convention No 137 also explains why, unlike other ILO conventions, (45) its content has not formed the subject of an agreement which has been concluded between social partners at international level and then incorporated into an EU directive.

67.      I infer from the foregoing that limiting the recruitment of dockers by requiring them to be recognised might be justifiable only in the interests of protecting port safety, that is to say in order to prevent accidents within the port perimeter, given the level of risk present there.

68.      As regards the need to be able to secure labour for the performance of dock work, if this were recognised as being an overriding requirement, it would not necessarily call for a closed quota system such as that currently under analysis. That need could reliably be met by using port employment agencies, temporary work agencies or other arrangements less rigid than the system mentioned above.

C.      Proportionality of the restriction

69.      As well as having to be justified by an overriding requirement, a national measure restricting the right of establishment is acceptable only if it observes the principle of proportionality. From this point of view, its content must be essential to securing attainment of the objective of port safety, meaning that the same result cannot be achieved by less stringent but equally effective provisions. (46)

70.      Articles 1 and 2 of the 1972 Law simply establish the recognition mechanism as an instrument for controlling and limiting the engagement of dockers. They do not, however, set out the detailed rules for the implementation of that mechanism.

71.      In my opinion, those two provisions, considered in isolation, could be recognised as satisfying the criterion of proportionality. Prior recognition of dockers as a condition of their engagement might, per se, be suitable for protecting the safety of dock workers. (47)

72.      Everything depends, however, on the configuration of the detailed rules for the grant of recognition. Rules based on objective, non-discriminatory criteria that are known in advance and that allow dockers from other Member States to demonstrate that, in their State of origin, they meet requirements equivalent to those applied to national dock workers would be permissible. (48)

73.      Recognition enabling dockers to be engaged in Belgian ports could be extended to all those having completed equivalent prior professional training (49) in their country of origin that adheres to the guidelines set out by the ILO, (50) for example. Such training would culminate in the acquisition of a professional training qualification entitling its holder to perform dock work. (51)

74.      In the judgment in Commission v Spain, (52) the Court held that there were options less restrictive of the freedom of establishment than the obligations laid down by the national legislation, (53) which included the obligation to prioritise the engagement of workers provided by a particular public limited company.

75.      At that time, the Court recognised the alternative means of protecting the safety of dock workers which had been suggested by the Commission as being less restrictive, namely that: ‘… it is for the cargo-handling undertakings themselves, since they have the freedom to engage permanent or temporary workers, to manage the employment agencies required to provide them with labour and organise the training to be delivered to those workers, or the option of creating a pool of workers managed by private undertakings operating as temporary work agencies and providing cargo-handling undertakings with workers’. (54)

76.      A further alternative means of ensuring port safety might be to provide that, in order to be recognised as suitable for engagement, dock workers must have sufficient professional training, as attested to, where appropriate, by certificates of professional competence.

77.      Articles 1 and 2 of the 1972 Law would not pass the proportionality test, however, if the detailed rules for their implementation gave rise to a monopoly on the recognition of dockers as a condition of their engagement which is controlled by the trade union organisations and employers’ associations in port areas.

78.      This was the case with the Belgian rules adopted in implementation of the 1972 Law, which the Commission considered to be incompatible with EU law and as a result of which it brought an action for failure to fulfil obligations. (55) Those rules (in particular, the Royal Decree of 5 July 2004) created a mechanism for the recognition of dockers which did not comply with the principle of proportionality. More specifically, it was not essential for improving port safety, an objective which could have been attained by means less restrictive of the right of establishment.

79.      Rather than undertaking an exhaustive analysis, (56) I shall confine myself to highlighting a number of aspects of that scheme which disproportionately restricted the right of establishment and failed to comply with Article 49 TFEU.

80.      In the first place, the model in question operated a closed shop for dockers in which trade union organisations enjoyed a privileged position. Recognition of the right of dockers to enter the general or the logistics pool was granted by a committee in each port that was comprised in equal parts of trade union representatives and the local employers’ association.

81.      In practice, (57) it seems that the trade union organisations exercised full control over the mechanism for the recognition of dockers in each port, so much so that applicants either had to be proposed by the trade unions or join them if they were put forward by the employers’ association. (58)

82.      In the second place, the corporatism of the model was reinforced by the monopoly that Article 3a of the 1972 Law conferred on local employers’ associations in respect of the engagement of dockers. (59) Each port had only one employers’ organisation, which most employers had to join, membership becoming almost compulsory in practice.

83.      This prevented dock workers from being directly engaged by the undertakings that required their services. A triangular relationship was created in which the local employers’ association enforced the employment rules prevailing in the port in question.

84.      In the third place, the closed shop was reinforced by the collective agreements negotiated in each port between the trade unions and the local employers’ association. The product of those negotiations was the adoption, in each port, of the so-called ‘codices’, that underpinned control over the mechanism for the engagement of dockers. Those arrangements operated as a barrier to the mobility of dock workers, even between one port and another, since recognition was obtained for the right to work in a single port.

85.      In the fourth place, the trade unions and employers’ organisations monopolised the training courses that applicant dockers had to complete. The training to be a dock worker was delivered by the same organisations that controlled the decisions on recognition. (60)

86.      Finally, the Royal Decree of 12 January 1973, in implementing the 1972 Law, laid down a material and geographical definition of port areas that was disproportionate:

-      From a material point of view, it classified as dock duties those carried out by all workers and their employers in port areas as their principal or ancillary activity, (61) as well as other secondary cargo-related services, such as marking or weighing. Many of the latter activities carried a lower risk than the actual loading and unloading of a vessel’s cargo, and, as a result, it was difficult for undertakings from other Member States to be able to establish themselves in Belgian ports in order to provide such services.

-      From a geographical point of view, the definition of port areas was very broad and included land alongside the docks occupied by warehouses and factories and even residential areas. (62)

87.      The restrictive effect of that broad material and geographical definition of dock work increased the restrictive effect of the measure provided for in Articles 1 and 2 of the 1972 Law.

88.      In short, if those two articles were assessed in their more extensive legislative context (that comprised of the Royal Decree of 5 July 2004 and the provisions predating it), as described above, the recognition of dockers, as an instrument for controlling and limiting the engagement of such workers, could not be regarded as being compatible with Article 49 TFEU. This would be the case because a closed shop controlled by the trade unions and employers’ organisation present in each port entails a disproportionate limitation of the freedom of establishment enjoyed by undertakings from other Member States.

89.      On the other hand, detailed rules on recognition based on objective, non-discriminatory criteria which are known in advance and allow dockers from other Member States to demonstrate that, in their State of origin, they meet requirements equivalent to those applied to national dock workers, would, as I have already stated, be permissible.

D.      Compatibility with Articles 15 and 16 of the Charter

90.      A restriction within the meaning of Article 49 TFEU affects, by extension, the freedoms provided for in Article 15(2) (freedom of establishment) and Article 16 (freedom to conduct a business) of the Charter. Those two provisions relate in particular to Article 49 TFEU. (63)

91.      The outcome of an analysis of the compatibility of the Belgian provision limiting the engagement of dockers with Articles 15(2) and 16 of the Charter would therefore be the same as that of the analysis I have just carried out in relation to Article 49 TFEU.

VI.    Second question in Case C‑471/19

92.      In the event that the answer to its first question is in the affirmative, the Grondwettelijk Hof (Constitutional Court) wishes to ascertain whether it may maintain the effects of Articles 1 and 2 of the 1972 Law in order to avoid legal uncertainty and social discontent while the Belgian legislature brings its legislation into line with EU law.

93.      As I have already submitted, Articles 1 and 2 of the 1972 Law do not, per se, give rise to a restriction contrary to Article 49 TFEU and Articles 15(2) and 16 of the Charter. On that basis, there would be no need to address the second question referred for a preliminary ruling.

94.      The outlook is different if account is taken of the legislative corpus comprised of those articles and the rules implementing them (the Royal Decree of 5 July 2004), which I consider to be incompatible with EU law. However, that body of legislation is no longer in force, the Belgian State having amended it, by way of the Decree of 10 July 2016, in such a way as to meet the Commission’s requirements.

95.      The question could be reformulated so as to confine it to the temporary maintenance of the effects of the body of legislation comprised of Articles 1 and 2 of the 1972 Law and the detailed rules for its implementation that are laid down in the Royal Decree of 10 July 2016. It would then have to be assumed that the new detailed rules are, like those contained in the Royal Decree of 2004, also contrary to Article 49 TFEU, an assumption that I shall examine below.

96.      The Court may, exceptionally and for overriding considerations of legal certainty, grant a provisional suspension of the ousting effect which a rule of EU law has on national law that is contrary thereto. (64)

97.      The Court has stated that that prerogative, in addition to being one which it alone may exercise, will empower national courts to temporarily suspend the application of the principle of primacy and maintain the effects of a national rule that is contrary to EU law, depending on the circumstances of the case. It is essential that there should be an overriding requirement in the general interest that is capable of justifying such a suspension, and that strict conditions are observed. (65)

98.      The Court has in several judgments authorised a suspension of the ousting effect inherent in the principle of primacy, thus temporarily maintaining the effects of national provisions contrary to procedural rules under EU environmental law (in particular, those laying down obligations to carry out environmental impact assessments). (66)

99.      In Winner Wetten (67) (concerning German rules on the monopoly on sports betting), on the other hand, the infringement of EU law was substantive. The Court nonetheless implicitly left open the door to the possibility (68) of suspending the effects of its judgment, citing in that regard the analogy with the case-law on maintaining the effects of an EU act that has been annulled or declared invalid (even though the temporary maintenance of the German legislation was not justified by the need to protect the social order and citizens from the risks connected with games of chance). (69)

100. I, like the Commission, take the view that in this case there are also insufficient reasons for temporarily maintaining the effects of the body of Belgian legislation. Neither the alleged legal uncertainty nor any social discontent cited by the referring court warrant it.

101. The Belgian Government also refers to the case-law on temporarily limiting the effects of preliminary rulings given by the Court on past legal situations.

102. That case-law (of which the referring court makes no mention) is not applicable here, since the two essential elements which it requires, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties, are not present. (70)

103. Good faith cannot be relied on when the Belgian legislation on dock work has been the subject of scrutiny and an action for failure to fulfil obligations brought by the Commission, which the latter admits to having shelved for political reasons. (71) What is more, following the judgment in Commission v Spain, the compatibility of that legislation with Article 49 TFEU was more than doubtful.

104. There would not appear to be any risk of serious difficulties either: the discontent felt by recognised dockers (even if expressed in the form, cited by the Belgian Government, of potential strikes) in connection with the amendments necessary to correct a recruitment system that operates to their benefit but is contrary to EU law, does not represent such a risk.

VII. Case C‑407/19

A.      General considerations on the new legislative framework, adopted by the Royal Decree of 10 July 2016, in the light of Articles 49 and 45 TFEU

105. By its seven questions, the Raad van State (Council of State) asks the Court to provide an interpretation indicating whether, inter alia, Articles 45 and 49 TFEU (72) are compatible with a number of aspects of the legislation, established by the Royal Decree of 10 July 2016, implementing the 1972 Law.

106. As I have already stated, on 28 March 2014, the Commission instituted proceedings for failure to fulfil obligations against Belgium because, in its opinion, the national rules on the organisation of dock work were, in certain essential respects, contrary to EU law, in particular the freedom of establishment.

107. According to the referring court, no amendments were made either to the 1972 Law or to its essential principles following the letter of formal notice issued by the Commission. The Belgian State did, however, adopt the Royal Decree of 10 July 2016 in response to the objections raised by the Commission and the latter decided, for political reasons, (73) to terminate the proceedings on 17 May 2017.

108. The principal elements of the new system for the recruitment of dockers (74) are as follows:

–      The requirement that all dock workers not engaged in logistical activities be recognised by an Administrative Committee set up within the Subcommittee responsible for each port area in Belgium, remains. The Administrative Committee is comprised in equal parts of representatives of the authorised local employers’ associations and representatives of the trade unions present at the port in question.

–      In so far as concerns the engagement of new workers to be engaged in logistics activities, the requirement of pool membership is abolished and the need to be in possession of a safety certificate is introduced as a condition of recruitment. Logistics workers from the previous pool retain their status as recognised workers.

–      In the case of dock workers engaged in non-logistical tasks, the general pool and the requirement of recognition are retained. Recognition may be applied for with a view to either joining the pool or being engaged directly by employers in a non-pool capacity. (75)

–      The acquisition of recognition is subject to conditions, including training and qualification requirements and the requirement to pass medical and psychological tests.

–      The Joint Administrative Committee admits new workers to the pool on the basis of demand for labour. Workers in the pool remain there in their capacity as recognised workers.

109. This method of recruiting dock workers continues to limit the freedom of establishment enshrined in Article 49 TFEU. The considerations I set out in my analysis of the first question in Case C‑471/19 are fully applicable to the new method.

110. Although expressed in a different context, the Court’s arguments in the judgment in AGET Iraklis (76) (concerning public intervention in connection with collective redundancies by undertakings in the port sector) may be extrapolated, mutatis mutandis, to the measures provided for in the Royal Decree of 10 July 2016.

111. Those measures, too, constitute ‘a significant interference in certain freedoms which economic operators generally enjoy […], to enter into contracts with workers in order to be able to carry out their activities or the freedom, for their own reasons, to bring the activity of their establishment to an end’. (77)

112. Also applicable to those measures are the words contained in the judgment in Commission v Spain, inasmuch as these are measures that ‘… compel foreign cargo-handling undertakings to make an adjustment which may trigger financial consequences and operational disruptions such as to deter undertakings from other Member States from establishing themselves in […] ports’. (78)

113. In one respect, that scheme of legislation may also impede the free movement of dock workers from other Member States who wish to be hired in Belgian ports, thus infringing Article 45 TFEU. The case-law on that freedom takes the same approach to the compatibility of restrictive national measures as that taken to the freedom of establishment.

114. According to the Court, all of the provisions of the TFEU relating to the freedom of movement of persons are intended to facilitate the pursuit by EU citizens of occupational activities of all kinds throughout the European Union. Those provisions preclude measures which might place them at a disadvantage when they wish to pursue an economic activity in another Member State. (79)

115. Accordingly, provisions which preclude or deter a national of a Member State from leaving his country of origin to exercise his right to freedom of movement constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned. (80)

116. The principle of equal treatment enshrined in Article 45 TFEU prohibits not only overt discrimination based on nationality but all covert forms of discrimination which, by applying other distinguishing criteria, in fact lead to the same result. Unless objectively justified and proportionate to the aim pursued, a provision of national law – even if it applies regardless of nationality – must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the migrant worker at a particular disadvantage. (81)

117. The measures identified by the referring court in its seven questions (with the exception of that referred to in the fifth question), although not directly discriminatory on grounds of nationality, may hinder or make less attractive the exercise of the freedom of intra-Community movement enjoyed by dock workers from other countries.

118. The overriding requirements in the general interest cited by the Belgian State in order to justify those measures, which derogate from the general employment legislation applied in that country, are port safety and protection of the rights of dock workers. (82)

119. Although, as I have already explained, those two interests have been recognised by the Court in its case-law as being overriding requirements, it must be determined whether the rules laid down in the Royal Decree of 10 July 2016 observe the principle of proportionality, that is to say whether they are necessary in order to realise those grounds of general interest and whether there are any less restrictive alternatives for doing so.

120. I shall now analyse each of the measures indicated by the Raad van State (Council of State) in the light of the information which it itself provides. Where that information is insufficient, I shall simply set out the minimum criteria necessary to enable an assessment of proportionality to be carried out by that court, which has before it all of the information it needs in order to give an exhaustive ruling.

B.      Recognition of dockers by decision of a Joint Administrative Committee (first question)

121. Article 1 of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, provides that, in each port area, dock workers must be recognised by a Joint Administrative Committee comprised in equal parts of representatives of the employers’ association and the trade unions present in that area.

122. The most prominent features of the mode of operation of those committees are as follows:

-      Applications for recognition are made in writing on a form specifying whether the application relates to employment inside or outside the pool.

-      Dock workers are granted, or not granted, recognition of entitlement to work in the pool on the basis of ‘the demand for labour’. Such recognition is granted for a fixed or indefinite period, the detailed rules governing the duration of recognition being laid down by collective agreement.

123. The applicant undertakings argue that, in the context of the recognition of dock workers not engaged in logistics activities, this system includes a number of elements that are incompatible with EU law, namely:

–      The composition of the Administrative Committee allows the authorised local employers’ associations and trade unions based at the port to exercise full control over access to dock work (closed shop). This may give rise to an artificial compartmentalisation of the market in dock work by the monopoly holding operators.

-      An economic criterion (the demand for labour) is used to determine whether or not the pool is to be opened up to new workers.

-      The procedure lacks the basic procedural guarantees, inasmuch as there is no time limit within which the Administrative Committee must make its decision, it must make its decisions unanimously, and the remedies against its decisions or omissions are non-existent or inadequate.

124. The Administrative Committee, which confers on dockers recognition of entitlement to work inside or outside the pool in each port, effectively grants authorisation to pursue an economic activity as a dock worker.

125. Article 49 TFEU does not require specific guarantees in relation to the creation and operation of a committee that takes decisions on the pursuit of an occupational activity. However, since such a decision is, in itself, a restriction on the freedom of establishment, the principle of proportionality will be observed only if that committee exercises its discretion in accordance with transparent and objective criteria aimed at ensuring that it does not perform its duties arbitrarily. (83)

126. A committee that issues such authorisations (recognitions) must also preserve its impartiality, which may be called into question in the case where some of its members, having a right to cast a dissenting vote, are operators on the market concerned or representatives thereof. (84) The independence of that committee vis-à-vis the aforementioned operators is a guarantee against conflicts of interest when it comes to taking decisions. (85)

127. The composition and mode of operation of the Administrative Committees that decide on applications for recognition made by dock workers are, as I have just explained, controlled by the operators that already have a presence in the ports, as represented by workers’ trade unions and the local employers’ association.

128. Their composition being as it is, it is unlikely that their members will not to be affected by conflicts of interest preventing them from being able to adjudicate objectively, impartially and non-arbitrarily on applications for recognition made by new dockers.

129. Although the final assessment falls to the referring court, which has all of the relevant information, it is difficult to conceive that such conduct on the part of Joint Committees when adjudicating on the recognition of dockers is consistent with the principle of proportionality.

130. There are, in addition, other elements of the Administrative Committee system which bear out the foregoing assessment.

131. The requirement of unanimity in the adoption of decisions (86) strengthens the control exercised by those operators already present in the ports, in particular trade unions, since it gives them a right to veto the admission of new dockers. According to the applicant companies, that right of veto extends to the withdrawal of recognition, thus effectively guaranteeing unionised dockers, who account for virtually the entire dock workforce, a job for life.

132. That same assessment is borne out by the fact that the criterion used to determine whether the pool should be opened up to new workers is a purely economic one: the demand for labour. That factor, as I shall explain below, cannot be regarded as an overriding requirement in the general interest justifying a restriction on the freedom of establishment.

133. The Belgian Government states, however, that the Administrative Committees have to apply the demand for labour criterion in order to ensure that the pool system is economically sustainable, and goes on to say that, since the adoption of the Royal Decree of 10 July 2016, undertakings have had the option of engaging recognised non-pool workers.

134. It is my view, however, that:

-      The economic sustainability of the pool system is not a reason that is capable of justifying a restriction on the freedom to provide services. (87)

-      Granting recognition on the basis of the demand for labour may have the effect, first and foremost, of protecting those who are already in the pool and of maintaining their advantages over new dock workers seeking to join it.

-      The option to engage workers who, although recognised, are not pool members is subject to extremely restrictive rules, inasmuch as recognition is valid only for the duration of the contract and a worker must obtain fresh recognition for every new contract. Given that dock work is very intermittent, undertakings tend to make frequent use of short-term contracts, for which the engagement of pool dockers is almost the only option available.

135. A final factor that supports the assessment that the Administrative Committee system lacks proportionality has to do with the procedure operated by the Committees and the remedies against their decisions or absence thereof. The existence of an effective means of judicial review is called for by Article 47 of the Charter and is relevant in determining whether a restriction on the freedom of establishment passes the proportionality test. (88)

136. According to the referring court, there is no prescribed time limit within which the Administrative Committees must adjudicate on applications. They make their decisions in accordance with a procedure without fixed time limits, without specific procedural guarantees and without a clear obligation to state reasons, (89) thus creating significant uncertainty among applicants. (90)

137. What is more, their decisions on recognition are open to judicial review only before the Tribunal du travail (Labour Court). (91) It is for the Raad van State (Council of State) to verify whether, account being taken of national law as a whole, those decisions are amenable to effective judicial review.

138. In the light of the foregoing considerations, taken as a whole, I am minded to propose that the first question be answered in the affirmative.

C.      Medical, psychological and training requirements as conditions for the recognition of dockers (second question)

139. Article 4(1), points 2, 3, 6 and 8, of the Royal Decree of 5 July 2004, as amended or introduced, as the case may be, by the Royal Decree of 10 July 2016, requires, as conditions of recognition as a docker, that a worker must:

-      be declared medically fit by the external service for prevention and protection at work to which the employers’ organisation appointed as agent is affiliated;

-      have passed the psychotechnical tests conducted by the body appointed by the authorised employers’ organisation;

-      have attended a course on safety at work and how to acquire the relevant professional qualification and passed the final exam; and

-      have an employment contract, if he is a non-pool port worker. (92)

140. The Raad van State (Council of State) asks whether those requirements are justified by the objective of protecting port safety. I agree with the Commission that the requirements of medical fitness, successful completion of psychological tests and professional training are, in principle, appropriate means of ensuring port safety.

141. However, before they can be regarded as compatible with Article 49 TFEU, those requirements must be assessed from the point of view of their transparency, objectivity and impartiality. In that connection, the applicant undertakings submit that the Royal Decree of 10 July 2016, in accordance with Article 3a of the 1972 Law, vests control over the external service for prevention and protection at work, which is responsible for certifying applicants’ medical fitness, and over the body tasked with carrying out psychotechnical testing, in the authorised employers’ organisation (and the trade unions).

142. It is for the referring court, which has all the material evidence, to determine whether or not the control exercised by the authorised employers’ organisations and trade unions over the bodies issuing medical fitness certificates and carrying out psychotechnical testing results in a lack of objectivity and transparency. (93)

143. It may be worth bearing in mind for the purposes of making that assessment that, in an uncontrolled labour market, applicants for recognition would be able to approach any authorised undertaking in order to have the aforementioned medical certifications and psychotechnical tests performed.

144. As regards professional training, I have already stated that, as a condition of acquiring recognition, this is an appropriate means of ensuring port safety.

145. However, the referring court must ascertain whether, as the applicant undertakings claim, the professional training which applicant dockers are required to complete in order to obtain recognition is also controlled by the employers’ organisations and trade unions present in the port areas, in which case it would not be open to any potential worker under objective and equal conditions. In that event, it might be exposed to the same risks (lack of impartiality, conflicts of interests) as I mentioned in my proposed answer to the first question.

146. Article 4(1), point 6, of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 2016, makes the pursuit of the profession of dock worker subject to possession of certain professional qualifications. Belgian dockers therefore appear to form part of a ‘regulated profession’ within the meaning of Article 3(1)(a) of Directive 2005/36 and the national provision transposing it. (94) Belgium should recognise the qualifications that dock workers have obtained in other Member States in which they have pursued that professional activity in accordance with the procedures and within the specific limits laid down by that directive. (95)

147. Article 4(3) of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, provides that dock workers from other Member States who meet equivalent requirements in their country of origin are not to be bound by the conditions of recognition applicable under the Belgian legislation.

148. The lack of information (in both the order for reference and the Belgian Government’s observations and replies) make it difficult to determine whether that procedure for assessing the equivalence of professional qualifications held by dockers from other Member States is consistent with EU law. According to the Commission, the Belgian Government did not notify it of the profession of dock worker so that this could be included in the (Commission’s own) database of regulated professions for the purposes of Directive 2005/36.

149. Once it has clarified these points, the referring court must take into account that any recognition granted to dock workers from other Member States must, in all cases, be valid in all port areas in Belgium and must not be subject to a requirement of renewal for each new employment contract.

D.      Recognition of non-pool dockers (third and fourth questions)

150. Article 2(3) of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, provides that the recognition of non-pool dock workers is to be confined to the duration of their employment contract.

151. A provision of this kind constitutes a serious limit on the engagement of dock workers and acts as a deterrent. Any docker seeking recognition as a non-pool worker must apply for it every time he concludes a contract with the same or another undertaking. Designed in this way, the measure represents a significant restriction on both the freedom of establishment and the free movement of workers.

152. Inasmuch as dock work is dominated by short-term jobs, the requirement for workers to keep renewing their recognition for every new contract inevitably steers them towards a preference for applying to join the pool. This perpetuates the closed shop operating under the control of the trade unions and the authorised employers’ organisation, and at the same time makes it difficult for new undertakings from other Member States to establish themselves in Belgian port areas. (96)

153. The Belgian Government states that the recognition of non-pool workers who have been granted recognition before is quicker, and that an electronic database (named ‘Portununus’) is being created in order to speed up the process and avoid delays. (97)

154. In any event, the fact that the granting of recognition is linked to the duration of the employment contract only in the case of workers outside the pool, but not in the case of those within it, still strikes me as disproportionate. The argument (cited by the Belgian Government) as to the need to verify that the former continue to meet the conditions of recognition could also be applied to pool workers, who may likewise no longer be medically or psychologically fit to perform their tasks.

155. Also disproportionate, in my opinion, is the transitional regime provided for in Article 13/1 of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, which applies to the recognition of non-pool dockers that have contracts with undertakings.

156. In accordance with those transitional rules, employment contracts must be concluded, initially, for an indefinite period; from 1 July 2017, for at least 2 years; from 1 July 2018, for at least 1 year; from 1 July 2019, for at least 6 months; and, from 1 July 2020, for a period to be determined on a discretionary basis.

157. Since most port work is short-term, that transitional regime meant that almost all port workers engaged were pool members and made it difficult to hire port workers directly.

158. The Belgian Government and the Commission submit that the aim of those transitional rules is to facilitate the gradual opening-up of the closed-shop system so as to ensure its economic viability. As I have already noted, however, preserving the economic viability of the pool-based engagement system cannot properly be regarded as an overriding requirement in the general interest.

159. It is true, however, that a transitional system could, hypothetically, protect the advantageous social and economic conditions enjoyed by pool dockers, while at the same time ensuring that the immediate abolition of those conditions does not entail a serious risk of undermining the balance of the social security system. (98) The fact nonetheless remains, first, that the Belgian Government has not used this argument and, second, that it is unlikely that the immediate abolition of the regime at issue would have a significant impact on the financing of the Belgian social security system.

E.      Automatic recognition as pool members of workers belonging to the general complement under the previous legislation (fifth question)

160. According to Article 15/1 of the Royal Decree of 5 July 2004, introduced by the Royal Decree of 10 July 2016, ‘port workers recognised under [the previous legislation] shall be recognised by operation of law as port workers forming part of the pool […]’.

161. The applicant undertakings take the view that such automatic recognition makes it difficult for port workers to be engaged directly (on a permanent contract). This, they go on to say, prevents employers from finding qualified workers, from concluding permanent contracts with them and from offering them job security in accordance with the provisions of ordinary employment law.

162. I, however, agree with the Commission that the automatic recognition of former members of the general complement of workers as pool workers protects their rights without at the same time giving rise to a disproportionate restriction on the freedom of establishment or the free movement of workers.

163. As the Belgian Government notes, this automatic mechanism exempts practising dockers from the obligation to apply for recognition under the Royal Decree of 210 July 2016.

164. It is a logical measure inasmuch as the experience in dock work that those workers already have demonstrates their ability to perform the tasks in question with the knowledge and safety required. Moreover, it does not prevent undertakings from engaging them directly, even though, in practice, working conditions in the pool are more advantageous and direct engagement will not be a common occurrence.

F.      Limit on the mobility of recognised dockers as a result of collective agreements (sixth question)

165. In accordance with Article 4(2) of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July of 2016:

-      The recognition granted to a dock worker is valid in any port area.

-      ‘The terms and conditions under which a dock worker may work in a port area other than that in which he is recognised are established by collective agreement’.

-      ‘The employers’ organisation appointed as agent in accordance with Article 3a [of the 1972 Law] shall continue as agent in the event that the dock worker works outside the port area in which he was recognised’. (99)

166. The referring court considers that the fact that the terms of dockers’ mobility are laid down by collective agreement may limit their mobility between port areas in Belgium, in breach of Articles 45 and 49 TFEU, since the legislature has not laid down the conditions or detailed rules for giving effect to such mobility.

167. Articles 45 and 49 TFEU apply not only to measures adopted by the public authorities but also to collective agreements. (100) Although, in principle, it is not contrary to those articles for the legislature to delegate to collective agreements the task of laying down the rules governing the mobility of recognised dock workers, such a delegation is to be regarded as valid provided that those agreements are not used in a corporatist fashion in order to create obstacles to the free movement of workers and the freedom of establishment. (101)

168. The applicant undertakings tell of one collective agreement that completely prohibits the mobility of recognised dockers between Belgian ports. The Belgian Government states that that agreement permits some mobility but that the transfer of workers from one pool to another is complicated because it is dependent on there being a demand for labour in the host pool. It further argues that, while a recognised worker who joins a pool could not work in another port area, workers recognised as non-pool dockers in one port area could be engaged, again on a non-pool basis, in another port area.

169. In the absence of further data, it is for the referring court to analyse whether or not the collective agreements in place at Belgian ports restrict workers’ mobility between one pool and another. That analysis must not fail to take account of the fact that a collective negotiation conducted between the trade unions and the authorised employers’ association present in each port could be used to maintain restrictions on the internal market freedoms and protect the advantages enjoyed by those drafting such collective agreements, where these impact on access to port activity and the employment of dockers.

170. In any event, it would appear that the national legislation guarantees recognition for dockers from other Member States and such recognition should be valid in all port areas in Belgium. According to the Court’s case-law, the obligation to request administrative authorisation to carry on an activity restricts the freedom of establishment more extensively where the undertaking from another Member State must obtain multiple authorisations from different State authorities. (102) This would be the case if recognition had to be successively (or simultaneously) sought from the Administrative Committees in the various Belgian ports.

G.      Requirement of a safety certificate for logistics workers (seventh question)

171. Article 1(3) of the Royal Decree of 5 July 2004, as amended by the Royal Decree of 10 July 2016, provides:

-      Where (logistics) workers ‘carry out work […] in places where goods, in preparation for their onward distribution or dispatch, undergo processing indirectly conferring demonstrable added value, and […] hold a safety certificate […], that safety certificate shall count as recognition within the meaning of [the 1972 Law]’.

-      ‘A safety certificate shall be requested by an employer who has signed an employment contract with a worker for the performance of activities such as those referred to in the preceding paragraph and shall be issued on presentation of the worker’s identity card and employment contract. The details of this procedure shall be laid down by collective labour agreement’.

172. It follows that, since the entry into force of the Royal Decree of 2016, the safety certificate, being equivalent to recognition, has replaced the former pool of logistics workers.

173. In common with the referring court, the Commission and the Belgian Government, I consider that the requirement for logistics workers to hold that certificate may, in principle, be justified on grounds of port safety.

174. However, that measure will pass the proportionality test only if the detailed rules for its application are appropriate. According to the Belgian Government, those rules were laid down in a collective agreement of 28 September 2016. Since the order for reference contains little information in this regard, it must fall to the Raad van State (Council of State) to assess their proportionality.

175. For the purposes of that assessment:

-      It will have to be considered whether the obligation on the employer to obtain a safety certificate for every contract with a logistics worker is disproportionate. Since many dock work contracts last for only a day or a week, this may prove to be an excessive administrative burden. (103)

-      According to the information from the Belgian Government and the applicant undertakings, the safety certificate takes the form of the acquisition of an ‘Alfapass’ card, which is issued by a private undertaking under the control of the employers’ association at the port of Antwerp. (104) The applicant undertakings find it incomprehensible that an administrative authorisation such as a safety certificate for a logistics worker should have to be obtained by the purchase at market price of a card issued, without conditions, by an unauthorised private undertaking.

-      Use of the Alfapass card, which was originally introduced in order to protect ports against terrorist activities, may not be suitable for verifying that logistics workers are able to perform their work safely. Issuing the card automatically would not be an appropriate means of attaining the objective which its use theoretically pursues.

VIII. Conclusion

176. In the light of the foregoing, I suggest that the Court reply to the requests for a preliminary ruling in Cases C‑407/19 and C‑471/19 as follows:

In Case C‑471/19:

(1)      Article 49 TFEU and Articles 15(2) and 16 of the Charter of Fundamental Rights of the European Union do not, in principle, preclude a system for the recognition of port workers which is intended to protect safety in port areas, provided that the detailed rules for its implementation are based on transparent, objective and non-discriminatory criteria that are known in advance and that allow dockers from other Member States to demonstrate that, in their State of origin, they meet requirements equivalent to those applied to national dock workers.

Detailed rules for the implementation of the recognition system which establish a closed shop operating under the control of the trade unions and employers’ organisation present in each port, and create disproportionate restrictions on the freedom of establishment of undertakings and the free movement of workers from other Member States, are incompatible with the aforementioned provisions of EU law.

(2)      Legal uncertainty and the risk of social discontent are not overriding reasons justifying the provisional maintenance of a system for the recognition of port workers such as that described in the preceding paragraph, which is incompatible with EU law.

In Case C‑407/19:

Articles 49 and 45 TFUE preclude national legislation which makes the prior recognition of workers a condition of access to dock work, where the detailed rules for its implementation include any of the following elements:

-      The use of administrative committees comprised, in equal parts, of representatives of the local employers’ association and trade unions in each port area in such a way that, for the purposes of deciding on applications for recognition, allows operators already present in the port area to control the entry of new workers by means of a procedure lacking due procedural guarantees.

-      The imposition of medical, psychological and professional training requirements, if the certification of compliance therewith is provided by bodies controlled by the employers’ association and trade unions present in each port.

-      Recognition of non-pool dock workers only for the duration of their employment contracts and in accordance with a transitional regime restricting the duration of those contracts.

-      Limits on the mobility of workers between the various port areas in a Member State, as agreed under collective agreements.

-      The requirement for logistics workers to hold a safety certificate which has to be renewed for every employment contract and takes the form of the issue of a card by a private undertaking.

1      Language: Spanish.

2      Van Hooydonk, E., Port labour in the EU. Labour Market, Qualifications & Training Health & Safety. Volume I – The EU Perspective, Study commissioned by the European Commission, Brussels, 2014, https://ec.europa.eu/transport/sites/transport/files/modes/maritime/ports/doc/2014-ec-port-labour-study-vol-1-update-5-12-2014.pdf.

3      Judgment of 11 December 2014, Commission v Spain (C‑576/13, EU:C:2014:2430; ‘the judgment in Commission v Spain’.

4      Those rules fall outside the scope of the new Regulation (EU) 2017/352 of the European Parliament and of the Council of 15 February 2017 establishing a framework for the provision of port services and common rules on the transparency of ports (OJ 2017 L 57, p. 1). Article 9 thereof leaves the competence to regulate this controversial field in the hands of the Member States.

5      Van Hooydonk, E., The law ends where the port area begins. On the anomalies of port law, Inaugural lecture at the launch of Portius – International and EU Port Law Centre, Antwerp/Apeldoorn, Maklu, 2010, p. 47.

6      Law of 8 June 1972 organising dock work (‘the 1972 Law’).

7      Royal Decree of 12 January 1973 establishing the Joint Ports Committee and laying down its name and powers.

8      Royal Decree of 5 July 2004 on the recognition of dock workers in port areas falling within the scope of the Law of 8 June 1972 organising dock work (‘the Royal Decree of 5 July 2004’).

9      Koninklijk besluit tot wijziging van het koninklijk besluit van 5 juli 2004 betreffende de erkenning van havenarbeiders in de havengebieden die onder het toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid (Royal Decree of July 2016 amending the Royal Decree of 5 July 2004 on the recognition of dock workers in port areas falling within the scope the Law of 8 June 1972 organising dock work; ‘the Royal Decree of 10 July 2016’); Belgisch Staatsblad of 13 July 2016). The Royal Decree of 5 July 2004 has recently been amended by Koninklijk besluit van 26 juni 2020 tot wijziging van het koninklijk besluit van 5 juli 2004 betreffende de erkenning van havenarbeiders in de havengebieden die onder het toepassingsgebied vallen van de wet van 8 juni 1972 betreffende de havenarbeid (Royal Decree of 26 June 2020 amending Royal Decree of 5 July 2004 on the recognition of dock workers in port areas falling within the scope of the Law of 8 June 1972 organising dock work), which came into force on 1 July 2020 and which does not apply ratione temporis in these proceedings.

10      Katoen is active in the maintenance of goods and merchandise in a broad sense. Its operations in ports all over the world include the embarkation and disembarkation of vessels coming from or going to other Member States, the storage, weighing, packing and packaging of products and merchandise, the provision of logistical and logistical support services and the delivery of services in the international and national transport of goods.

11      General Services facilitates, in Belgium and abroad, the employment and integration of persons on the labour market in activities such as the performance of logistical operations, the handling of goods and merchandise in a broad sense and the national and international transport of goods.

12      In their view, the contested Royal Decree infringes Article 106(1) TFEU.

13      Paragraphs 35 and 36 of the order for reference.

14      Judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 47 and the case-law cited).

15      Ibidem, paragraph 51.

16      Ibidem, paragraph 55: ‘it is for the referring court to indicate to the Court, in accordance with the requirements of Article 94 of the Rules of Procedure of the Court, in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law on the fundamental freedoms that makes the preliminary ruling on interpretation necessary for it to give judgment in that dispute’.

17      According to the Court’s case-law, where a national measure restricts more than one freedom of movement, the Court’s examination is confined to assessing the compatibility of that measure with just one of those freedoms, if it appears that, in the circumstances of the case, one of those freedoms is entirely secondary in relation to the other and may be considered together with it (judgments of 14 October 2004, Omega, C‑36/02, EU:C:2004:614, paragraph 26, and of 26 May 2005, Burmanjer and Others, C‑20/03, EU:C:2005:307, paragraph 34).

18      Although the applicant undertakings’ observations refer to competition issues, the order for reference does not specifically identify what they are.

19      Judgment of 16 September 1999 (C‑22/98, EU:C:1999:419, paragraphs 26 to 30 and 37).

20      The Court held that, since they are, for the duration of their employment relationship, incorporated into the undertakings concerned and thus form an economic unit with each of them, dock workers themselves do not constitute ‘undertakings’ within the meaning of EU competition law. Even taken collectively, the recognised dockers in a port area cannot be regarded as constituting an undertaking.

21      See Van Hooydonk, E., The EU Seaports Regulation. A commentary on Regulation (EU) 2017/352 of the European Parliament and of the Council of 15 February 2017 establishing a framework for the provision of port services and common rules on the financial transparency of ports, Portius Publishing, Antwerp, 2019.

22      Notteboom, T. E., ‘The impact of changing market requirements on dock labour employment systems in Northwest European seaports’, International Journal of Shipping and Transport Logistics, 2018, No 4, p. 443; and Verhoeven, P., ‘Dock Labor Schemes in the Context of EU Law and Policy’, European Research Studies, 2011, No 2, p. 155 et seq..

23      Article 3(9) of the Proposal for a Directive defines ‘self-handling’ as ‘a situation in which an undertaking (a self-handler), which normally could buy port services, provides for itself, using its own land-based personnel, […] one or more categories of port services in accordance with the criteria set out in this Directive’ [COM(2004) 654 final, of 13 October 2004, Proposal for a Directive of the European Parliament and of the Council on market access to port services].

24      Footnote 4.

25      Article 9(2) provides that the managing body of the port, or the competent authority, shall require the designated provider of port services to grant staff working conditions in accordance with applicable obligations in the field of social and labour law and to comply with social standards as set out in Union law, national law or collective agreements. Paragraphs 3 and 4 of Article 9 have to do with maintaining the rights of workers in the event of a change of provider of port services.

26      It is worth noting that Article 14 of Regulation 2017/352 concerns the training of staff, and states that ‘providers of port services shall ensure that employees receive the necessary training to acquire the knowledge which is essential for their work, with particular emphasis on health and safety aspects, and that training requirements are regularly updated to meet the challenges of technological innovation’.

27      Directive of the European Parliament and of the Council of 7 September 2005 (OJ 2005 L 255, p. 22).

28      This seems to follow from paragraphs B.8.2 and B.8.3 of the order for reference: in the view of the Council of Ministers, the question is inadmissible because dock work is defined in the Royal Decrees implementing the 1972 Law. The Grondwettelijk Hof (Constitutional Court) responds to that objection by stating that, although the Royal Decrees define the concept of dock work, it is Articles 1 and 2 of that Law which introduce the contested closed shop system in port areas and give rise to the difference in treatment at issue.

29      Judgments in Commission v Spain, paragraph 36; of 14 November 2018, Memoria y Dall’Antonia (C‑342/17, EU:C:2018:906, paragraph 48); of 8 May 2019, PI (C‑230/18, EU:C:2019:383, paragraph 59); and of 19 December 2019, Comune di Bernareggio (C‑465/18, EU:C:2019:1125, paragraph 39).

30      See, by analogy, the judgments of 5 November 2014, Somova (C‑103/13, EU:C:2014:2334, paragraphs 41 to 45), and of 8 May 2019, PI (C‑230/18, EU:C:2019:383, paragraph 60).

31      Order for reference, paragraphs B.14 and B.15.

32      In Paragraph 37 of that judgment, the Court held that ‘both the obligation to register with the SAGEP and, as appropriate, to hold shares in that company, and the obligation to employ as a priority workers provided by that company, including a minimum number on permanent contracts, compel foreign cargo-handling undertakings to make an adjustment which may trigger financial consequences and operational disruptions such as to deter undertakings from other Member States from establishing themselves in Spanish ports of general interest’.

33      Judgment in Commission v Spain, paragraph 47.

34      The Belgian Government referred (with very little by way of argument) to the protection of public safety, given the need to combat the illegal trafficking in various goods which can take place at ports. To my mind, this purported justification is irrelevant, since combating illegal activity in ports is a matter for the customs and police authorities, not dockers.

35      ‘The aim of ensuring safety in port waters constitutes such an overriding reason in the public interest’: judgments in Commission v Spain, paragraph 51; and of 17 March 2011, Naftiliaki Etaireia Thasou and Amaltheia I Naftiki Etaireia (C‑128/10 and C‑129/10, EU:C:2011:163, paragraph 45). The Court has also held that the mooring service is a technical nautical service which is essential to the maintenance of safety in port waters and has the characteristics of a public service (judgment of 18 June 1998, Corsica Ferries France, C‑266/96, EU:C:1998:306, paragraph 60).

36      The Belgian Government goes on to say that those tasks are often carried out using specific machinery the operation of which requires technical knowledge and sufficient experience. Moreover, a particular feature of a port area is the fact that activities have to be carried out within a relatively small space, in which tasks and machines of every kind, all of them close to water and quays, will inevitably cross paths with railway lines transecting the site, cranes, and goods needing to be unloaded with special care. Such activities entail less risk if they are carried out beyond the port perimeter. The risk of an accident at work is therefore proportionately greater within the port perimeter.

37      In the view of the applicant companies, the increasing mechanisation of goods maintenance, the computerised piloting of container cranes and lifting vehicles in port terminals, the automatic weighing and counting of goods, the robotisation of warehouses, the scanning of dispatched containers for damage and the use of driverless lorries have greatly reduced the risk of dock work.

38      Occupational Safety and Health (Dock Work) Convention, 1979 (No. 152) https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312297:NO and Occupational Safety and Health (Dock Work) Recommendation, 1979 (No. 160) https://www.ilo.org/dyn/normlex/es/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312498:NO.

39      ‘The international port industry dates from the earliest days of civilisation. Since that time it has developed steadily over the years. However, cargo-handling methods that were both arduous and dangerous remained largely unchanged until the introduction of containers and roll-on-roll-off (“ro-ro”) systems in the 1960s. Technical developments have continued since then, including the introduction of increasingly sophisticated cargo-handling equipment with greatly increased capacity and reach. While many of these changes in cargo-handling methods have resulted in significant improvements for the safety of portworkers, some changes have introduced new hazards […]’. International Labour Organisation, Safety and health in ports. ILO code of practice, Geneva, 2005, https://www.ilo.org/public/libdoc/ilo/2005/105B09_39_engl.pdf, p. 1.

40      Judgments in Commission v Spain, paragraph 50; and of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union (C‑438/05, EU:C:2007:772, paragraph 77 and the case-law cited).

41      Text available at https://www.ilo.org/dyn/normlex/es/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C137. See also Dock Work Recommendation, 1973 (No. 145), available at https://www.ilo.org/dyn/normlex/es/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312483:NO.

42      These data are available at https://www.ilo.org/dyn/normlex/es/f?p= 1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312282.

43      Rodriguez-Piñero and Bravo-Ferrer, M., ‘Trabajo portuario y libertad de contratación de trabajadores’, Relaciones Laborales, 2002, No 1, pp. 14 and 15, and Rodríguez Ramos, P., ‘El régimen jurídico de la relación laboral de los estibadores: pasado, presente y futuro’, Temas Laborales, 2018, No 142, pp. 103 to 108.

44      Paragraph 44.

45      This is the case, for example, with the ILO Maritime Labour Convention, 2006, the content of which was incorporated into EU law through the adoption of Council Directive (EU) 2018/131 of 23 January 2018 implementing the Agreement concluded by the European Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation (ETF) to amend Directive 2009/13/EC in accordance with the amendments of 2014 to the Maritime Labour Convention, 2006, as approved by the International Labour Conference on 11 June 2014 (OJ 2018 L 22, p. 28).

46      Judgment of 19 December 2019, Comune di Bernareggio (C‑465/18, EU:C:2019:1125, paragraph 47), and judgment in Commission v Spain, paragraph 53.

47      Van Hooydonk, E., cited above in footnote 2, p. 207, states: ‘In sum, EU law allows Member States and social partners to choose between a free and open port labour market or an efficient and sustainable registration or pool system which is not affected by restrictive excesses, either in the law or in practice’.

48      See, by analogy, the judgments of 5 February 2015, Commission v Belgium (C‑317/14, EU:C:2015:63, paragraphs 27 to 29), and of 6 June 2000, Angonese (C‑281/98, EU:C:2000:296, paragraphs 44 and 45).

49      The level of training required of dock workers varies substantially from one Member State to another, according to a report produced by P. Turnbull, Training and Qualification Systems in the EU Port Sector: Setting the State of Play and Delineating an ETF Vision, ETF, Brussels, July 2009, https://www.etf-europe.org/wp-content/uploads/2018/08/Training-and-qualification-systems-in-the-EU-port-sector-EN.pdf.

50      ILO, Guidelines on training in the port sector. ILO Code of Practice, Geneva, 2012, https://www.ilo.org/wcmsp5/groups/public/---ed_dialogue/---sector/documents/normativeinstrument/wcms_214609.pdf.

51      There would probably not be any need to require the same training of practising dockers, for whom a certificate of occupational proficiency attesting to the competence they have acquired through accumulated experience should be sufficient.

52      Commenting on the repercussions of that judgment in other Member States, Van Hooydnke states: ‘The Spanish dock ruling of the Court of Justice brings an end to the era of “old style” port work, in which the occupation of dock worker was regarded being something special, indeed mythologised, while the resulting organisation of work in ports was often something of a bottleneck and gave workers in this category privileges compared to workers in similar sectors’, in Hooydonk, E., ‘The Spanish Dock Labour Ruling (C‑576/13): Mortal Blow for the Docker’s Pools’, European Transport Law, 2015, p. 581.

53      Those obligations were, first, to join the Sociedad Anónima de Gestión de Estibadores Portuarios (Dockers’ Management Public Limited Liability Company) (SAGEP) and, as appropriate, to hold shares in the company, and, secondly, to prioritise employing workers provided by that company, including a minimum number on permanent contracts.

54      Judgment in Commission v Spain, paragraph 55. Giving effect to that judgment in Spain has been a complex process and it took the imposition of a financial penalty (judgment of 13 July 2017, Commission v Spain, C‑388/16, not published, EU:C:2017:548) to trigger the implementation of the corresponding legislative reforms, which took the form of Royal Decree-Law 8/2017 of 12 May 2017, replaced by Royal Decree-Law 9/2019 of 29 March 2019. The legal regime introduced by the latter forms the subject matter of Case C‑462/19, pending before the Court.

55      Case 2014/2088, C(2014) 1874 (final).

56      See Van Hooydonk, E., Port Labour in the EU. Labour Market, Qualifications & Training Health & Safety. Volume II – The Member State Perspective. Annexes, Brussels, 2014, pp. 8 to 135.

57      Engels, C., ‘The European Social Charter: Freedom of Association and Free Collective Bargaining. European and Belgian Implementation’, in R. Blanpain (ed.), The Council of Europe and the Social Challenges of the XXIst Century, Kluwer Law International, The Hague, 2001, p. 204; and Van Hooydonk, E., cited above in footnote 56, pp. 57 to 59.

58      The applicant undertakings have provided the official form, issued by the Service public fédéral Emploi, Travail et Concertation sociale (Belgian public employment service), for applying for recognition as a docker. That form makes express reference to the need for the form to be stamped by the trade union in the port in which recognition is sought and signed by the corresponding trade union representative, and contains information on any family ties the applicant may have with dock workers.

59      Pursuant to Article 3a of the 1972 Law, provision was made, by Royal Decree, for the establishment of local employers’ associations in the ports of Antwerp, Zeebrugge, Ghent, Ostend and Brussels Viilvoorde. However, other Belgian ports servicing maritime traffic, such as Ruisbroek (on the Brussels-Scheldt Maritime Canal), Genk or Liège, were excluded from the application of the 1972 Law and its implementing rules, despite the fact that sea-going vessels were loaded and unloaded in those ports as well.

60      For example, the ‘Cepa/OCHA’ training centre at the port of Antwerp, at http://www.ocha.be/.

61      These include the handling in any form of goods transported by sea-going ship or inland waterway vessel, by railway goods wagon or lorry, and the ancillary services connected with those goods, whether such operations take place in docks, on navigable waterways, on quays or in establishments engaged in the importation, exportation and transit of goods, as well as the handling in any form of goods transported by sea-going ship or inland waterway vessel to or from the quays of industrial establishments.

62      Van Hooydonk, E., cited in footnote 56 above, Brussels, 2014, pp. 18 to 22.

63      See to that effect the judgments of 13 February 2014, Sokoll-Seebacher (C‑367/12, EU:C:2014:68, paragraph 22), and of 8 May 2019, PI (C‑230/18, EU:C:2019:383, paragraphs 52 to 55).

64      Judgment of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 33).

65      Judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103), and of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 43).

66      Judgments of 28 February 2012, Inter-Environnement Wallonie and Terre wallonne (C‑41/11, EU:C:2012:103); of 28 July 2016, Association France Nature Environnement (C‑379/15, EU:C:2016:603, paragraph 43); and of 29 July 2019, Inter-Environnement Wallonie and Bond Beter Leefmilieu Vlaanderen (C‑411/17, EU:C:2019:622, paragraphs 179 to 181).

67      Judgment of 8 September 2010 (C‑409/06, EU:C:2010:503).

68      Which Advocate General Bot had opposed in his Opinion of 26 January 2010, Winner Wetten (C‑409/06, EU:C:2010:38), points 96 to 99.

69      Paragraph 67 of the judgment of 8 September 2010, Winner Wetten (C‑409/06, EU:C:2010:503), states: ‘… even assuming that considerations similar to those underlying that case-law, developed as regards acts of the Union, were capable of leading, by analogy and by way of exception, to a provisional suspension of the ousting effect which a directly applicable rule of Union law has on national law that is contrary thereto, such a suspension, the conditions of which could be determined solely by the Court of Justice, must be excluded from the outset in this case, having regard to the lack of overriding considerations of legal certainty capable of justifying the suspension’. See to the same effect the judgment of 27 June 2019 Belgisch Syndicaat van Chiropraxie and Others (C‑597/17, EU:C:2019:544, paragraph 59).

70      See the judgments of 27 February 2014, Transportes Jordi Besora (C‑82/12, EU:C:2014:108, paragraph 41); of 19 April 2018, Oftalma Hospital (C‑65/17, EU:C:2018:263, paragraph 57); of 10 July 2019, WESTbahn Management (C‑210/18, EU:C:2019:586, paragraph 45); and of 3 October 2019, Schuch-Ghannadan (C‑274/18, EU:C:2019:828, paragraphs 60 to 62). ‘The Court has taken that step only in quite specific circumstances, notably where there was a risk of serious economic repercussions owing in particular to the large number of legal relationships entered into in good faith on the basis of rules considered to be validly in force and where it appeared that individuals and national authorities had been led to adopt practices which did not comply with EU law by reason of objective, significant uncertainty regarding the implications of European Union provisions, to which the conduct of other Member States or the Commission may even have contributed’ (judgments of 10 July 2019, C‑210/18, WESTbahn Management, EU:C:2019:586, paragraph 46, and of 14 March 2019, Skanska Industrial Solutions and Others, C‑724/17, EU:C:2019:204, paragraph 57).

71      Commission’s written observations, paragraph 12.

72      See points 34 to 39 of this Opinion.

73      Point 103 and footnote 71 of this Opinion.

74      On the evolution of the organisation of dock work in European ports, I refer to the studies by Notteboom, T.E., ‘The impact of changing market requirements on dock labour employment systems in Northwest European seaports’, International Journal Shipping and Transport Logistics, 2018, No. 4, pp. 429 to 454; and Verhoeven, P., ‘Dock Labor Schemes in the Context of EU Law and Policy’, European Research Studies, 2011, No. 2, pp. 149 to 167.

75      Under the transitional system (in place until 1 July 2020), recognition for non-pool workers is granted for the duration of the employment contract and must be applied for anew for each subsequent contract.

76      Judgment of 21 December 2016 (C‑201/15, EU:C:2016:972).

77      Ibidem, paragraph 55.

78      Judgment in Commission v Spain, paragraph 37.

79      Judgments of 23 January 2019, Zyla (C‑272/17, EU:C:2019:49, paragraph 22), and of 7 March 2018, DW (C‑651/16, EU:C:2018:162, paragraph 21 and the case-law cited).

80      Judgments of 23 January 2019, Zyla (C‑272/17, EU:C:2019:49, paragraph 23); of 16 February 2006, Rockler (C‑137/04, EU:C:2006:106, paragraph 18); and of 16 February 2006, Öberg (C‑185/04, EU:C:2006:107, paragraph 15).

81      Judgments of 23 January 2019, Zyla (C‑272/17, EU:C:2019:49, paragraph 24); of 7 March 2018, DW (C‑651/16, EU:C:2018:162, paragraphs 29 to 31); and of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken (C‑514/12, EU:C:2013:799, paragraphs 25 and 26).

82      It is settled case-law that purely economic grounds, such as the promotion of the national economy or its proper functioning, cannot serve as justification for an obstacle to one of the fundamental freedoms enshrined in the Treaties (see the judgments of 2 February 2019, Associação Peço a Palavra and Others, C‑563/17, EU:C:2019:144, paragraph 70; and of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 72).

83      Judgment of 19 July 2012, Garkalns (C‑470/11, EU:C:2012:505, paragraph 42): ‘an authorisation scheme […] must be based on objective, non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise by the authorities of their discretion so that it is not used arbitrarily’.

84      Judgment of 15 January 2002, Commission v Italy (C‑439/99, EU:C:2002:14, paragraph 39). See, by analogy, the judgment of 26 September 2013, Ottica New Line (C‑539/11, EU:C:2013:591, paragraph 53): ‘the competent authorities may authorise the establishment of an additional optician’s shop only after receiving a mandatory opinion from a committee of the Chamber of Commerce which is made up […] of representatives of opticians active on the market, namely direct competitors of those seeking establishment’.

85      See, by analogy, in the context of the free movement of goods, the judgment of 19 March 1991, France v Commission (C‑202/88, EU:C:1991:120, paragraph 52).

86      Article 1(1) of the Royal Decree of 2004 refers to the Royal Decree of 6 November 1969 laying down the general rules of operation of Joint Committees and Sub-committees. The unanimity rule comes from the last paragraph of Article 47 of the Law of 5 December 1968 on collective labour agreements and Joint Committees.

87      Judgment of 7 March 2018, DW (C‑651/16, EU:C:2018:162, paragraphs 33 and 34).

88      Judgment of 8 May 2019, PI (C‑230/18, EU:C:2019:383, paragraph 81).

89      In the judgment of 19 July 2012, Garkalns (C‑470/11, EU:C:2012:505), the Court states, in paragraph 43, that, ‘in order to enable the impartiality of the authorisation procedures to be monitored, it is also necessary for the competent authorities to base each of their decisions on reasoning which is accessible to the public, stating precisely the reasons for which, as the case may be, authorisation has been refused’.

90      According to the Commission, the statistics available to it show that no decision was given on 52% of applications for recognition of entitlement to work in the pool in the period 2014-2019 and none on 43% of applications for recognition of entitlement to work outside the pool in the period 2016-2019. In its answer to the Court’s questions, the Belgian Government refuted those figures and gave some explanations for the administrative delays in the processing of applications.

91      Order for reference, paragraph 40.

92      I shall analyse the requirement of an employment contract as a condition of recognition for non-pool port workers in the context of the third and fourth questions.

93      See, by analogy, the judgment of 17 December 2015, UNIS and Beaudout Père et Fils (C‑25/14 and C‑26/14, EU:C:2015:821, paragraphs 34 to 37), which has to do with the obligation of transparency imposed by the freedom to provide services on a decision to entrust to a single body the management of a supplementary social insurance scheme for a given period. Observance of that obligation of transparency means that potentially interested operators other than the one appointed must previously have been given an opportunity to express their interest in providing such management and that the operator entrusted with the management of that supplementary scheme must have been appointed with full impartiality.

94      The applicant undertakings state that dockers from other Member States have on no occasion benefited from mutual recognition.

95      In particular, Title III, Chapters I and II, and Articles 50, 51 and 53 of Directive 2005/36.

96      According to the Commission’s statistics, in the period 2016-2019, there were only 28 applications for recognition as a non-pool member, as compared with 3 901 applications for recognition as a pool member.

97      Article 5 of the Royal Decree of 26 June 2020, which amended the Royal Decree of 5 July 2004, provides for the creation of that application under that name. As I have already stated, this rule came into force on 1 July 2020 and is therefore not applicable ratione temporis in these cases.

98      See the judgment of 28 April 1998, Kohll (C‑158/96, EU:C:1998:171, paragraph 41).

99      As I have already said, this provision appears to apply only to the ports of Antwerp, Ghent, Ostend, Zeebrugge and Brussels, but not to other Belgian ports such as Genk or Liège.

100      Judgment of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union (C‑438/05, EU:C:2007:772), paragraphs 33, 34 and 50 to 58.

101      See Van Hooydonk, E., cited above in footnote 2, pp. 152 to 157.

102      Judgments of 21 March 2002, Commission v Italy (C‑298/99, EU:C:2002:194, paragraph 64); and of 13 December 2007, Commission v Italy (C‑465/05, EU:C:2007:781, paragraph 59).

103      The same is true of the requirement to make repeated requests for safety certificates in relation to one and the same worker, and to collect each certificate from one of the issuing offices. The cost per card might also be excessive for the purposes of engagements lasting only one or a few days.

104      Information on this card and the company issuing it can be found at https://www.alfapass.be/fr/.

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