Ian William Cowan v. Tresor Public (the Treasury) (Case 186/87) Before the Court of Justice of the European Communities ECJ

Transcription

1 Ian William Cowan v. Tresor Public (the Treasury) (Case 186/87) Before the Court of Justice of the European Communities ECJ (Presiding, Due C.J.; Koopmans, Joliet and O'Higgins PP.C.; Slynn, Mancini, Kakouris, Schockweiler, Moitinho de Almeida, Rodriguez Iglesias and Diez de Velasco JJ.) Herr Carl Otto Lenz, Advocate General. 2 February 1989 Reference from France by the Commission d'indemnisation des Victimes d'infraction (Compensation Board for Victims of Crime) Attached to the Tribunal de Grande Instance (District Court), Paris, under Article 177 EEC. Discrimination. Nationality. By prohibiting 'any discrimination on grounds of nationality,' Article 7 EEC requires that persons in a situation governed by Community law be placed on a completely equal footing with nationals of the member-state. In so far as that principle is applicable, therefore, it precludes a member-state from subjecting the grant of a right to such a foreigner to the condition that he be resident in that State, such condition not applying to the State's own nationals. [10] Discrimination. Nationality. The right to equal treatment of Community nationals under Article 7 EEC is conferred directly by Community law and therefore may not be made dependent on the issue of a certificate to that effect by the authorities of the relevant member-state, nor on the existence of a reciprocal agreement between the relevant member-state and the member-state of which the foreigner is a national. [11]-[12] Regina v. Pieck (157/79): [1980] E.C.R. 2171, [1980] 3 C.M.L.R. 220, and Frilli v. Belgium (1/72): [1972] E.C.R. 457, [1973] C.M.L.R. 386, applied. Services. Restrictions. Tourists.

2 The freedom to provide services includes the freedom for the recipients of services to go to another member-state in order to receive a service there without being obstructed by restrictions. Tourists, among others, must be regarded as recipients of such services. [15] Services. Restrictions. Discrimination. Physical safety. Freedom of movement in connection with the provision of services *614 includes the right to the same degree of protection from bodily harm as is afforded to nationals and residents of the member-state in question. This includes also any provision for compensation for such harm as is suffered, even if that compensation is provided from public funds and without the establishment of liability on the part of any named person. [17] Criminal law. Discrimination. Community law and national law. Although in principle criminal law and the rules of criminal procedure are matters within the control of the member-states, Community law sets certain limits to the States' discretion. One such limit is the rule that national criminal law and procedure may not discriminate against persons to whom Community law gives the right to equal treatment nor may it restrict the fundamental freedoms guaranteed by Community law. [19] The Court interpreted Article 7 EEC in the context of a British national resident in Britain who while visiting France as a tourist was mugged outside a Paris metro station and was refused compensation from the French Criminal Injuries Compensation Board because he was not French nor resident in France nor the national of a country with which France had a reciprocal agreement, to the effect that he was a recipient of tourist services within the context of the Community freedom to provide services, that that freedom included the right to nondiscriminatory treatment and was not limited to a prohibition on restrictions on freedom of movement, that bodily safety of an EEC tourist was covered by the non-discrimination rule, that compensation for bodily harm suffered notwithstanding was likewise covered, that the non-discrimination rule could not be limited by requirements of reciprocity, that although criminal law and procedure normally lay within the reserved powers of the member-states it also was subject to the non-discrimination rule under Community law, and that therefore the refusal to grant compensation infringed Article 7. Representation Michael Renouf, English solicitor, of Egger & Son (Horsham), P. Jenkinson, of the Lille Bar, and L. Misson, of the Liège Bar, for the plaintiff. M. Giacomini, Secretary of Foreign Affairs in the Ministry of Foreign Affairs, assisted by M. Baconnin, an expert, and (in the written proceedings) G. Guillaume, Director of Legal Affairs at the Ministry of Foreign Affairs, for the

3 defendant. Jean Amphoux, Legal Adviser to the E.C. Commission, for the Commission as amicus curiae. *615 The following cases were referred to in the judgment: 1. Regina v. Pieck (159/79), 3 July 1980: [1980] E.C.R. 2171, [1980] 3 C.M.L.R Gaz:159/79 2. Frilli v. Belgium (1/72), 22 June 1972: [1972] E.C.R. 457, [1973] C.M.L.R Gaz:1/72 3. Luisi and Carbone v. Ministero del Tesoro (286/82) & (26/83), 31 January 1984: [1984] E.C.R. 377, [1985] 3 C.M.L.R Gaz:286/82 4. Casati (203/80), 11 November 1981: [1981] E.C.R. 2595, [1982] 1 C.M.L.R Gaz:203/80 The following further cases were referred to by the Advocate General: 5. Birra Dreher v. Amministrazione delle Finanze dello Stato (162/73), 21 February 1974: [1974] E.C.R Gaz:162/73 6. Pigs Marketing Board v. Redmond (83/78), 29 November 1978: [1978] E.C.R. 2347, [1979] 1 C.M.L.R Gaz:83/78 7. Bekaert v. Procureur de la Republique (204/87), 20 April 1988: [1988] 2 C.M.L.R Gaz:204/87 8. Procureur du Roi v. Debauve (52/79), 18 March 1980: [1980] E.C.R. 833, [1981] 2 C.M.L.R Gaz:52/79 9. coditel v. cine vog films (No. 1) (62/79), 18 March 1980: [1980] E.C.R. 881, [1981] 2 C.M.L.R Gaz:62/ coditel v. cine vog films (No. 2) (262/81), 6 October 1982: [1982] E.C.R. 3381, [1983] 2 C.M.L.R Gaz:262/ Bond Van Adverteerders v. Netherlands (352/85), 26 April 1988: [1988] E.C.R. 2085, [1989] 3 C.M.L.R Gaz:352/ Re Insurance Services: E.C. Commission v. Germany (205/84), 4 December 1984: [1986] E.C.R. 3755, [1987] 2 C.M.L.R. 69. Gaz:205/ The State v. Watson and Belmann (118/75), [1976] E.C.R. 1185, [1976] 2 C.M.L.R Gaz:118/ European Parliament v. E.C. Council (13/83), 22 May 1985: [1985] E.C.R. 1513, [1986] 1 C.M.L.R Gaz:13/ Belgium v. Humbel (263/86), 27 September 1988: [1989] 1 C.M.L.R Gaz:263/ Morson and Jhanjan v. Netherlands (35-36/82), 27 October 1982: [1982] E.C.R. 3723, [1983] 2 C.M.L.R Gaz:35/ The Republic v. Sagulo (8/77), 14 July 1977: [1977] E.C.R. 1495, [1980] 2 C.M.L.R Gaz:8/ Re Housing Aid: E.C. Commission v. Italy (63/86), 14January 1988: [1988] E.C.R. 29, [1989] 2 C.M.L.R Gaz:63/86 * Sotgiu v. Deutsche Bundespost (152/73), 12 February 1974: [1974] E.C.R Gaz:152/73

4 The following additional cases were referred to in argument: 20. L.C. Nungesser KG and Kurt Eisele v. E.C. Commission (258/78), 8 June 1982: [1982] E.C.R. 2015, [1983] 1 C.M.L.R Gaz:258/ Centre Public D'Aide Sociale v. Lebon (316/85), 18 June 1987: [1987] E.C.R. 2811, [1989] 1 C.M.L.R Gaz:316/ Gravier v. City of Liege (293/83), 13 February 1985: [1985] E.C.R. 593, [1985] 3 C.M.L.R. 1. Gaz:293/ Levin v. Staatssecretaris Van Justitie (53/81), 23 March 1982: [1982] E.C.R. 1035, [1982] 2 C.M.L.R Gaz:53/ Re Tax Credits: E.C. Commission v. France (270/83), 28 January 1986: [1986] E.C.R. 273, [1987] 1 C.M.L.R Gaz:270/83 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Opinion of the Advocate General (Herr Carl Otto Lenz) Facts The reference for a preliminary ruling with which I am concerned today, submitted by a Board attached to the Tribunal de Grande Instance, Paris, concerns the prohibition of discrimination with regard to the compensation of victims of crime. The case raises fundamental questions regarding the freedom to provide services and the concomitant rights of Community citizens. On 11 June 1982, during a visit to Paris, the applicant in the main proceedings, a United Kingdom national, was assaulted, robbed and injured at the exit from a metro station. On 26 May 1983 he applied to the Board for compensation for his injuries. His application is based on section of the Code de Procédure Pénale (Code of Criminal Procedure), pursuant to which: Any person who suffers harm as a result of acts, intentional or not, which constitute the actus reus of an offence may obtain compensation from the State provided the following conditions are met: (1) The acts caused physical injury resulting in death, permanent invalidity or total incapacity for work lasting for at least one month; *617 (2) The harm consists in serious interference with the enjoyment of life as a result of loss or reduction of income, increase in expenses, inability to carry on an occupation or physical or psychological harm; (3) The injured person cannot obtain effective and adequate compensation from any other source. Section of the Code of Criminal Procédure confines the application of that provision to 'persons who are of French nationality or foreign nationals who prove that they are nationals of a State which has concluded a reciprocal agreement with France for the application of the said provisions and satisfy the conditions laid down in the agreement or that they are holders of a residence permit.' On the basis of the latter provision, the Agent Judiciaire du Trésor (legal

5 representative of the Treasury) submitted that the applicant had no right to compensation. The applicant, on the other hand, argued that the rule in issue was incompatible with Community law, inasmuch as it constituted unlawful discrimination on grounds of nationality. The Board hearing the matter therefore stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling: Are the provisions of section of the Code de Procédure Pénale, which governs cases where a foreign national who is the victim of an offence in France may obtain compensation from the French State, compatible with the prohibition of discrimination contained inter alia in Article 7 of the EEC Treaty? For further details of the circumstances of the case and the submissions of the parties reference is made to the Report for the Hearing. Opinion The question referred by the Board requires the determination of the scope and limits of the freedom to provide services. Unlike the free movement of goods and freedom of movement for persons the freedom to provide services has not yet given rise to such an abundant case law that it is possible to speak of a complete system of freedom to provide services. As this case shows, there are still questions regarding its scope and the criteria defining its limits. The Board, attached to the Tribunal de Grande Instance, which is seised of the main proceedings must be regarded as a 'court or tribunal' for the purposes of Article 177(2) EEC. It is an independent judicial body responsible for adjudicating on claims for compensation by victims of crime. It is a court of compulsory jurisdiction, conceived as a permanent body on a legislative basis. The Board arrives at its decisions by the application of legal rules, in particular the Code de Procédure Pénale. It thus meets all the *618 criteria laid down by the case law of the Court of Justice for the identification of a 'court or tribunal' for the purposes of Article 177 EEC. [FN1] FN1 Case 162/73, Birra Dreher v. Amministrazione delle Finanze dello Stato,: [1974] E.C.R In its reference for a preliminary ruling the Board has expressly raised the question of the compatibility of a national provision with Community law. It is not the task of the Court of Justice to decide such a question. A judgment ruling a national legal provision inapplicable or invalid is a matter for the jurisdiction of the national courts. That does not, however, mean that the reference is inadmissible. The Court has consistently held that it is not bound by the wording of the question referred. [FN2] The Court may, on the basis of the factual and legal background of the case, re-state the question so as to address the issue of Community law. It may thus, in its ruling, provide the national court with criteria enabling it to decide the particular case before it. FN2 E.G. Case 83/78, Pigs Marketing Board v. Redmond: [1978] E.C.R. 2347, [1979] 1 C.M.L.R. 177 and Case (204/87), Bekaert: [1988] E.C.R., [1988] 2

6 C.M.L.R The question in this case may be restated in the following manner: Can a difference in treatment, on the basis of nationality, of victims of crime who apply for State compensation constitute discrimination on grounds of nationality contrary to Community law? The first question which arises is whether a Community citizen such as the applicant is covered by Community law in his capacity as a tourist and thus placed in a privileged position. I shall address the second aspect first, since it relates more closely to what we have been asked by the national court. It is possible that a tourist--without it being necessary to define that terms here-- may derive rights from his position as a recipient of services. For that to be the case, a recipient of services must be capable of being an independent subject of Community rights and obligations. No comprehensive framework for the freedom to provide services has yet been developed. It is clear from the legal definition contained in Article 60 EEC that 'services' for this purpose are services which 'are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.' That wording suggests that the provision of services is something of a residual category. Inasmuch as the provisions on the objects and activities of the Community (Article 3 EEC) place the provision of services on the same footing as the movement of goods, persons and capital, its area of application cannot be restricted to a residual function. It plays an independent rôle as one of the fundamental freedoms. *619 A delimitation of its substantive scope must be oriented towards the model of a common market in which all economic activities within the Community are freed from all restrictions on grounds of nationality or residence. Between them, the free movement of goods and freedom of movement for persons, in respect of which a distinction is usually drawn between freedom of movement for workers and freedom of establishment, [FN3] already cover a large proportion of transnational economic activities. If it is desired to define the freedom to provide services not negatively, as a residual category, but positively, it is clear that it covers transnational 'trade' in products which are not 'goods.' Examples of this form of trade have already arisen in the case law of the Court of Justice, in the area of transnational broadcasting [FN4] and in the area of insurance. [FN5] FN3 Joined Cases 286/82 and 26/83, luisi and carbone v. ministero del tesoro: [1984] E.C.R. 377, [1985] 3 C.M.L.R. 52 At Para. [9]. FN4 Case 52/79, Procureur du Roi v. Debauve: [1980] E.C.R. 833, [1981] 2 C.M.L.R. 362; Case 62/79, Cotidel v. Cine Vog Films (No. 1): [1980] E.C.R. 881, [1981] 2 C.M.L.R. 362; Case 262/81, Cotidel v. Cine Vog Films (No. 2): [1982] E.C.R. 3381, [1983] 2 C.M.L.R. 496 and Case 352/85, Bond Van Adverteerders v. Netherlands: [1988] E.C.R. 2085, [1989] 3 C.M.L.R FN5 Case 205/84, E.C. Commission v. Germany: [1986] E.C.R. 3755, [1987] 2

7 C.M.L.R. 69. For the provision of services of this kind the movement of persons across frontiers is not absolutely necessary. There are, however, other conceivable forms of transnational trade in services. These are cases in which either the person providing services goes to another member-state or the recipient of services receives them in another member-state. These movements are not covered by freedom of movement for persons as it has usually been defined. There is, however, a need for Community Law to govern that situation, if we do not wish the freedom to provide services to be reduced to trade in services which does not entail any movement of persons. It is clear from the EEC Treaty and from secondary Community legislation that that was never the intent of the Community legislature. The paradigm of the provision of services under Article 59 EEC, is the person who in order to provide services goes temporarily to another member-state. That may be, but is not necessarily, the place of residence of the recipient of the services. The person for whom the services are intended may very well receive them in another place. All that is necessary is that the person providing the services and their recipient should not be resident in the same place. The idea that the freedom to provide services may be exercised by way of a temporary change of location by the person providing the services has also been reinforced by Community action and legal measures. Measures concerning the provision of services have frequently been adopted at the same time and in the same terms as provisions on freedom of establishment. The General Programme *620 for the abolition of restrictions on freedom to provide services [FN6] and the General Programme for the abolition of restrictions on freedom of establishment [FN7] were adopted on the same day, were published together and are regularly cited together. FN6 O.J. Spec.Ed., 2nd Series, Vol. IX, p. 3. FN7 O.J. Spec.Ed., 2nd Series, Vol. IX, p. 7. Council Directive 75/362 contains provisions concerning both matters, freedom of establishment and the provision of services. The directive concerns the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services. [FN8] Other examples are Directive 73/148 on the abolition of restrictions on movement and residence within the Community for nationals of member-states with regard to establishment and the provision of services [FN9] and Directive 75/34 on the right of nationals of a member-state to remain in the territory of another member- State after having pursued therein an activity in a self-employed capacity. [FN10] FN8 [1975] O.J. L167/1.

8 FN9 [1973] O.J. L172/14. FN10 [1975] O.J. L14/10. Although most attention has been focused on the person providing services, that cannot mean that the recipient of services plays no rôle from a legal point of view. As a necessary party to the transaction he too is a potential beneficiary of the freedom to provide services under Community law. It follows neither from Article 59 EEC nor from secondary legislation that he can receive the services only at his place of residence. If it is sufficient, therefore, for the provision of a service to be covered by Community law that the person providing the service and its recipient should be resident in different member-states, it must now be determined what consequences that has for the legal position of the recipient of the service. In the General Programme for the abolition of restrictions on freedom to provide services the recipient of services is already referred to as a person on whom certain restrictions are not to be placed. In Title III it is stated that the restrictions set out therein are to be eliminated 'whether they affect the person providing the services directly, or indirectly through the recipient of the service or through the service itself.' The recipient of services has been referred to expressly as a subject of rights in several Community measures since the adoption of the general programme. The preamble to Council Directive 64/221 [FN11] states inter alia that: 'co-ordination... should in the first *621 place deal with the conditions for entry and residence of nationals of member-states moving within the Community either in order to pursue activities as employed or self-employed persons, or as recipients of services.' [FN12] That theme appears again in Article 1 of the directive, pursuant to which: 'The provisions of this directive shall apply to any national of a member- State who resides in or travels to another member-state of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services.' [FN13] The directive governs the obligation of the member- States to issue a residence permit, and provides inter alia that the person concerned is to be allowed to remain temporarily in the territory of the member- State pending a decision either to grant or to refuse a residence permit (see the second subparagraph of Article 5(1)). A more recent directive 'on the abolition of restrictions on movement and residence within the Community for nationals of member-states with regard to establishment and the provision of services' [FN14] requires the member-states to abolish restrictions on the movement and residence of nationals of member-states wishing to go to another member-state as recipients of services (Article 1(1)(b)). Article 4(2) provides that: The right of residence for persons providing and receiving [FN15] services shall be of equal duration with the period during which the services are provided. FN11 Directive of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, [ ] O.J.

9 Spec. Ed. 117, and Directive 75/35 extending the scope of Directive 64/221, [1975] O.J. L14/14. FN12 My emphasis. FN13 My emphasis. FN14 Directive 73/148. FN15 My emphasis. Where such period exceeds three months, the member-state in the the territory of which the services are performed shall issue a right of abode as proof of the right of residence. Where the period does not exceed three months, the identity card or passport with which the person concerned entered the territory shall be sufficient to cover his stay. The member-state may, however, require the person concerned to report his presence in the territory. Since the implementation of that directive in national law a recipient of services has had a primary right to remain in a member-state of which he is not a national. In that respect he is a beneficiary of the principle of freedom of movement for persons contained in Article 3(c) EEC. [FN16] That position under Community law may be restricted in an unlawful manner, in which case a restriction imposed by a national provision will be inapplicable as contrary to Community law. FN16 Case 118/75, Watson and Belmann: [1976] E.C.R. 1185, [1976] 2 C.M.L.R. 552, At Para. [16]. The question which now arises is whether a tourist is to be regarded potentially or effectively as a recipient of services. In Joined Cases 286/82 and 26/83 [FN17] the Court held that 'tourists, persons receiving medical treatment and persons travelling for the *622 purpose of education or business are to be regarded as recipients of services.' There is no reason to retreat from that statement of the law. However, it is not made clear who is to be regarded as a 'tourist' or to what extent a tourist is entitled to rely on the prohibition of discrimination under Community law. FN17 Ibid. We must therefore consider defining the term 'tourist' for the purposes of Community law. If it is borne in mind that tourists are only one category of recipients of services, it becomes apparent that such a definition is of dubious utility. In any event it is not important from a legal point of view to lay down strict definitions of the individual possible groups of potential recipients of services and distinguish them one from another. What is important is to give some substance

10 to the notion of a recipient of services. Even if it is desired to define the term 'tourist' in an abstract manner in Community law, there is no compelling reason to give decisive weight for the purposes of the definition to any one of the possible services received. Reference, for example, to an overnight stay in a hotel, as was suggested at the hearing, would certainly catch a significant proportion of travellers. There could be no doubt as to the receipt of a service in the form of accommodation. That would also constitute an element in common with other potential recipients of services, such as, according to the Court, persons travelling for the purpose of education or business. [FN18] It would, on the other hand, leave out of the scope of the definition a significant number of travellers who may very well make considerable use of tourist facilities and thus receive services. FN18 Joined Cases 286/82 & 26/83, Para. [16]. According to an opinion poll published by the Commission, [FN19] after hotel guests (32%) the second largest group of persons who travel for purposes of tourism are those who stay with relatives or friends (21%). It cannot seriously be questioned that those persons too make use of tourist facilities such as the catering industry or cultural facilities. FN19 Survey carried out for the Commission in June 1986 by European Omnibus Survey: European File, No. 9/87. At worst, a tourist could be defined as a person who receives--in whatever form-- services from tourist facilities. Even so broad a definition is questionable at the outset, if it is borne in mind that many cultural facilities such as theatres, cinemas, museums etc. provide their services equally to the local population. International tourism is an important branch of the service sector, which falls under the corresponding provisions of the EEC Treaty. Where it is necessary, in a specific legal context such as that of the present proceedings, to define the characteristics of a person as a recipient of services, there are two possible approaches. Reasoning ex ante, one might focus in a general manner on the services to be received in the course of a journey and thus *623 determine the status of the recipient of services right at the beginning of the journey. That approach is supported by the measures on entry and the right to remain in a country, since the person can rely on his status as a recipient of services at the border, before he has entered the territory of another member-state and even before he has actually received a service. A second possible way of defining a recipient of services would be an ex post approach focussing on the services actually received. That approach would effectively preclude any improper reliance on the status of a recipient of services. Nevertheless the first of those two possibilities seems to me to be the better. It is consistent with the few measures which already exist concerning recipients of services and avoids unregulated areas which might give rise to confusion and

11 disputes. I have already referred to the problem that not only facilities specifically for tourists but also services which are provided equally to the local population may entitle the persons concerned to rely on the freedom to provide services. That is true both of cultural facilities and of certain means of transport. It is obvious that transport facilities play an important rôle in tourism. That point is equally applicable to taxi firms, bus tour operators, car rental firms and public transport. Viewed in those terms the use of the metro can be regarded as a service for the purposes of Community law. The particular organisational form of the transport form is irrelevant in so far as it is a facility which may be used in return for payment; that is also the decisive criterion in Community law for identifying it as a person providing services. At first sight Article 61 EEC might be regarded as an obstacle to the treatment of national transport undertakings as providers of services to tourism. That Article states that freedom to provide services in the field of transport is to be governed by the provisions of the Title relating to transport. That objection, however, can be rejected as superficial. Article 61 EEC concerns above all the transnational provision of services as a primary subject-matter of the freedom to provide services. Furthermore, it also covers non-resident transport undertakings in their capacity as persons providing services. This view is confirmed by the judgment in Case 13/83, [FN20] in which the subject-matter of Article 61(1) in conjunction with Article 75(1)(a) and (b) EEC is described as 'international transport to or from the territory of a member-state or passing across the territory of one or more member-states' and 'the conditions under which non-resident carriers may operate transport services within a member-state.' There is thus no reason not to treat transportation, even *624 where there is no foreign element, as a provision of services for a recipient resident in another member-state, since it must also be presumed that the service is provided for remuneration, in the sense that the payment constitutes the consideration for the use of the transport service. FN20 Case 13/83, European Parliament v. E.C. Council: [1985] E.C.R. 1513, [1986] 1 C.M.L.R We must now turn to the argument to the effect that compensation by the State can itself be regarded as a service covered by Community law. Such an approach is not supported by the examples set out in Article 60 in the definition of ' services' for the purposes of the Treaty. 'Services' for the purposes of the Treaty are services normally provided for remuneration, and include in particular activities of an industrial and commercial character and the activities of craftsmen and of the professions. Even if some argument could previously have been made, certainly after the clear statements in the judgment in Case 263/86 [FN21] on the question whether State education can constitute a service for the purposes of the Treaty there is no basis for treating a social measure financed from public resources as a service. The decisive factors in the Humbel case are essentially comparable with the main features of this case.

12 FN21 Case 263/86, Belgian State v. Humbel: [1989] 1 C.M.L.R In the view of the Court, an important characteristic of remuneration is that it constitutes the financial consideration for the service and is normally fixed by agreement between the person providing the service and its recipient. [FN22] Just as that element is lacking in the case of public education, there is no identifiable remuneration, within the meaning of the above-mentioned definition, for State compensation of victims of crime. FN22 Case 263/86, Para. [17]. The further remarks made in Case 263/86 are also applicable here. Where the State establishes and maintains a system for compensating victims of crime, it does not intend to engage in paid activities but is simply fulfilling its function towards the population in the social, cultural and educational sectors. [FN23] In general such benefits are financed from the State budget. FN23 Case 263/86, Para. [18]. Social welfare benefits can be of relevance from the point of view of Community law in particular in the area of a common social policy or with regard to freedom of movement for workers, where the objective is complete integration of the group concerned. They are not the proper subject-matter of the freedom to provide services. 'Social [FN24] tourism,' travel with the sole or main purpose of taking advantage of what may be more favourable social welfare benefits *625 in the host country, is not an objective of the EEC Treaty. Indeed, that is made clear in connection with the freedom to provide services by the use of the words 'for remuneration.' FN24 Beware this use of the word 'social,' which, however, accords with established Community usage. As the following words make clear, the phrase does Not mean 'social tourism' as an Englishman would understand it, but something quite different. -- Ed. It follows from the foregoing considerations that the Treaty must be considered applicable [FN25] to the case of a traveller in the indicated circumstances both from an objective and from an individual point of view. From an objective point of view, because he falls within the scope of the freedom to provide services, and from an individual point of view, because a recipient of services is a protected person under the relevant provisions of Community law. There is nothing, as a matter of principle, to preclude reliance on the requirement of equal treatment under Community law. [FN26] In this specific case the principle falls to be applied as it is expressed in Articles 7 and 59 EEC. As a specific prohibition of discrimination, Article 59 EEC constitutes a particular manifestation of the general prohibition of discrimination under Article 7; it applies the latter in a

13 concrete form but does not supersede it. FN25 Joined Cases 35-36/82, Morson and Jhanjan v. Netherlands: [1982] E.C.R. 3723, [1983] 2 C.M.L.R FN26 On the applicable legal basis see Case 8/77, Sagulo: [1977] E.C.R. 1495, [1980] 2 C.M.L.R Conditions of entitlement for a scheme of compensation for victims of crime under which the benefit of the scheme is restricted to nationals of the member- State concerned, foreigners who possess a residence permit and foreigners whose country of origin has concluded a reciprocal agreement may thus be contrary to Community law when they constitute a 'restriction' of the freedom provided for under Community law. Discrimination on grounds of nationality can constitute such a restriction. In its judgment in Case 63/86 [FN27] the Court of Justice described the content of Articles 52 and 59 of the Treaty as a manifestation of the principle of equal treatment under Article 7; it thus comprises a requirement of equal treatment for Community citizens who carry on activities as self-employed persons and a prohibition of discrimination on the basis of nationality which constitutes an obstacle to access to or the exercise of such activities. FN27 Case 63/86, E.C. Commission v. Italy: [1988] E.C.R. 29 [1989] 2 C.M.L.R. 601, At Paras. [12] and [13]. On the issue of a restriction I should like to focus first of all on the second element, that of an obstacle to access to or the exercise of activities. Let me reiterate what I have already stated: what is protected is freedom of movement for persons for the purpose of receiving services. In my view the refusal of the host country to grant compensation does not affect access but does affect the exercise of the freedom. That is to say, a Community citizen who does not belong to a privileged category under Community law enjoys a reduced level of protection with regard to his most personal rights. *626 Compensation for victims of crime must be understood as an aspect of public security and public order. It is compensation for infringement of a right which it is the duty of the State to protect but which in the specific case it was not able to safeguard. In opposition to that approach it cannot be argued that criminal law remains unrestricted as a complex matter within the jurisdiction of the national legislature. That principle should not be impaired. [FN28] However, for the assessment of a legal rule from the point of view of Community law what is important is not the area of the law in which it is found but its substantive content; secondly, what is in issue is only the application without discrimination of a measure which has been adopted. FN28 On the division of jurisdiction with regard to criminal law and procedure,

14 see Case 203/80, Casati: [1981] E.C.R. 2595, [1982] 2 C.M.L.R A Community citizen who wishes to enjoy the same level of protection as a national of the State concerned is compelled by the compensation scheme in question to take out insurance to cover the relevant risk. The sources necessary for that purpose represent a reduction in the budget at his disposal. It can certainly be regarded as an impediment to the right of temporary residence. The impediment to the right of temporary residence which lies in the failure to grant compensation to certain Community citizens who are victims of crime is also discriminatory. Community citizens who do not hold French nationality, possess a residence permit or come from a State which has entered into a reciprocal agreement may be compared with French nationals who live outside French territory. The latter are, it is not disputed, entitled to compensation. There can be said to be discrimination where there is no objective reason for the failure to treat comparable groups in the same manner. According to the judgment in Case 152/73, [FN29] the objective reasons for the different treatment must relate to the situation of the persons concerned. In my estimation there are no criteria present in this case which justify any distinction from that point of view. FN29 Case 152/73, Sotigu v. Deutsche Bundespost: [1974] E.C.R The argument was raised in these proceedings that an objective reason for different treatment may lie in the fact that the funds for the compensation of victims of crime are derived from the State budget and that persons who have not contributed to collective funds should not be entitled to benefit from them. That argument must be rejected for a number of reasons. First of all, it is virtually impossible to draw any hard and fast distinction between persons who have contributed to the total revenue of the national budget and those who have not. For example, a French national who does not work in French territory may pay income tax to the State in which he does work. Conversely, businessmen who are not permanently established in *627 the territory of a member-state may for example be liable to pay corporation tax, property tax and so on to a member-state in which they are not resident. Even if we focus exclusively on recipients of services, it is apparent that by making use of services such persons not only stimulate economic activity but contribute by way, for example, of turnover taxes to the national budget. Moreover, the Court of Justice has already held that persons who do not belong to the category of migrant workers and whose complete integration in the State where they work is thus not a Community objective have a right to social welfare benefits. The Italian State was held to have infringed the Treaty by reserving for its own nationals the right to buy or rent State-subsidised housing and to obtain housing loans on favourable terms. [FN30] FN30 Case 63/86, Supra. Finally, in my view compensation for victims of crime is not a social welfare

15 benefit in the classical sense, that is to say a subsistence payment provided by the welfare administration. The simple fact that compensation for victims of crime is paid from public funds is not sufficient for it to constitute a social welfare benefit. It must be regarded as compensation for harm suffered, something with which we are quite familiar in civil and public law in the form of claims for damages or compensation. In claims for compensation against the State funds from the State budget are used, and such payments are not regarded as social welfare payments. The fact that the State did not cause the harm is no obstacle to this approach. In enacting legislation for the compensation of victims of crime it takes a position analogous to that of a guarantor with regard to compensation for harm which could not otherwise be redressed, harm arising from the infringement of rights which it was the State's duty to protect but which it was not able to guarantee. To sum up, therefore, we must say this: a scheme which makes the payment of compensation for victims of crime subject, for nationals of another member-state, to possession of a residence permit or the existence of a reciprocal agreement with their country of origin, where no such requirement is made of nationals of the State in question who reside in other member-states, is contrary to Community law. In conclusion, I must deal with the argument to the effect that the amendment of the original 1977 legislation, to the detriment of foreign victims of crime, was contrary to the standstill obligation contained in Article 62 EEC. As the Commission's representative correctly observed at the hearing, since the end of the transitional period Articles 59 and 60 EEC are directly applicable, so that any impediment to the freedom to provide services is contrary to Community law. Specific reliance on Article 62 is no longer *628 necessary, since any new restriction constitutes an obstacle to which Article 59 applies. It follows from the foregoing that a tourist, as a recipient of services, is protected from discrimination on grounds of nationality with regard to compensation for victims of crime. It is therefore unnecessary to reply to the question whether a national of a member-state (an E.C. national) is entitled to such protection irrespective of his capacity as a recipient of services. The costs incurred by the French Government and the Commission are not recoverable. For the parties to the main proceedings the proceedings before the Court of Justice are in the nature of a step in the main action. A decision on costs is therefore a matter for the national court. Conclusion On the basis of the foregoing considerations I propose the following answer to the question referred by the national court: A difference in treatment of Community citizens, on the basis of nationality, under a compensation scheme for victims of crime can constitute a discriminatory obstacle, contrary to Community law, to a right of temporary residence extended under Community law. It must be borne in mind in that regard that a recipient of services also has a primary right of residence. A person's capacity as a recipient of services is to be assessed on the basis of the services of which he will avail

16 himself during his period of residence. JUDGMENT [1] By order of 5 June 1987, which was received at the Court on 16 June 1987, the Commission d'indemnisation des Victimes d'infraction attached to the Tribunal de Grande Instance, Paris, referred to the Court for a preliminary ruling under Article 177 EEC a question on the interpretation of the prohibition of discrimination laid down in Article 7 of the Treaty, in order to be able to assess whether a provision of the French Code de Procédure Pénale (Code of Criminal Procedure) was compatible with Community law. [2] That question arose in a dispute between the French Trésor Public (Treasury) and a British citizen, Ian William Cowan, concerning compensation for injury resulting from a violent assault suffered by him at the exit of a metro station during a brief stay in Paris. [3] Since his assailants could not be identified Mr Cowan applied to the Commission d'indemnisation des Victimes d'infraction attached to the Tribunal de Grande Instance, Paris, for compensation under section of the Code of Criminal Procedure. That *629 provision allows compensation to be obtained from the State inter alia when the victim of an assault which has caused physical injury with consequences of a certain severity is unable to obtain effective and adequate compensation for the harm from any other source. [4] Before the Commission d'indemnisation the Law Officer of the Treasury submitted that Mr. Cowan did not satisfy the conditions for obtaining the abovementioned compensation provided for in section of the Code of Criminal Procedure. The section provides that only the following persons may receive the compensation in question: Persons who are of French nationality or foreign nationals who prove: that they are nationals of a State which has concluded a reciprocal agreement with France for the application of the said provisions and that they satisfy the conditions laid down in the agreement; or that they are holders of a residence permit. [5] Mr. Cowan then relied on the prohibition of discrimination laid down, in particular, in Article 7 EEC. He argued that the conditions set out above were discriminatory and that such conditions prevented tourists from going freely to another member-state to receive services there. The representative of the Treasury and the Ministère Public replied that the rules in question treated resident foreigners in the same way as French nationals and that to distinguish their situation from that of tourists was compatible with Community law, which itself makes periods spent by nationals of one member-state in another member- State subject to different conditions according to the length of the stay. [6] In those circumstances the Commission d'indemnisation considered that an interpretation of the Community rules in the light of the essential requirements and aims of Community law was necessary in order for it to be able to assess whether the disputed provisions were compatible with the Treaty; it therefore

17 stayed the proceedings and submitted the following question to the Court of Justice for a preliminary ruling: Are the provisions of section of the Code de Procédure Pénale, which governs cases where a foreign national who is the victim of an offence in France may obtain compensation from the French State, compatible with the prohibition of discrimination contained inter alia in Article 7 of the EEC Treaty? [7] Reference is made to the Report for the Hearing for the facts of the main proceedings, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. [8] The preliminary question asks in essence whether the prohibition of discrimination laid down in particular in Article 7 *630 EEC precludes a member- State, in respect of persons in a situation covered by Community law, from making the award of State compensation for harm caused in that State to the victim of an assault resulting in physical injury subject to the condition that he hold a residence permit or be a national of a country which has entered into a reciprocal arrangement with that member-state. [9] As a preliminary point it should be recalled that the first paragraph of Article 7 of the Treaty provides that 'within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.' These terms lay down both the content and the scope of the prohibition of discrimination. The content of the prohibition of discrimination [10] By prohibiting 'any discrimination on grounds of nationality' Article 7 of the Treaty requires that persons in a situation governed by Community law be placed on a completely equal footing with nationals of the member-state. In so far as this principle is applicable it therefore precludes a member-state from making the grant of a right to such a person subject to the condition that he reside on the territory of that State--that condition is not imposed on the State's own nationals. [11] It should also be emphasised that the right to equal treatment is conferred directly by Community law and may not therefore be made subject to the issue of a certificate to that effect by the authorities of the relevant member-state (in that respect see Case 157/79, Regina v. Pieck. [FN31] FN31 [1980] E.C.R. 2171, [1980] 3 C.M.L.R [12] Finally, it should be recalled, as the Court first stated in Case 1/72, Frilli v. Belgium, [FN32] that the right to equal treatment laid down in Community law may not be made dependent on the existence of a reciprocal agreement between the relevant member-state and the country of which the person concerned is a national. FN32 [1972] E.C.R. 457, [1973] C.M.L.R. 386.

18 [13] It follows that in so far as the prohibition of discrimination is applicable it precludes a member-state from making the award of a right to a person in a situation governed by Community law subject to the condition that he hold a residence permit or be a national of a country which has entered into a reciprocal agreement with that member-state. The scope of the prohibition of discrimination [14] Under Article 7 of the Treaty the prohibition of discrimination applies 'within the scope of application of this Treaty' and 'without prejudice to any special provisions contained therein.' This latter expression refers particularly to other provisions of the Treaty in *631 which the application of the general principle set out in that Article is given concrete form in respect of specific situations. Examples of that are the provisions concerning free movement of workers, the right of establishment and the freedom to provide services. [15] On that last point, in its judgment in Joined Cases 286/82 and 26/83, Luisi and Carbone v. Ministero del Tesoro, [FN33] the Court held that the freedom to provide services includes the freedom for the recipients of services to go to another member-state in order to receive a service there, without being obstructed by restrictions, and that tourists, among others, must be regarded as recipients of services. FN33 [1984] E.C.R. 377, [1985] 3 C.M.L.R [16] At the hearing the French Government submitted that as Community law now stands a recipient of services may not rely on the prohibition of discrimination to the extent that the national law at issue does not create any barrier to freedom of movement. A provision such as that at issue in the main proceedings, it says, imposes no restrictions in that respect. Furthermore, it concerns a right which is a manifestation of the principle of national solidarity. Such a right presupposes a closer bond with the State than that of a recipient of services, and for that reason it may be restricted to persons who are either nationals of that State or foreign nationals resident on the territory of that State. [17] That reasoning cannot be accepted. When Community law guarantees a natural person the freedom to go to another member-state the protection of that person from harm in the member-state in question, on the same basis as that of nationals and persons residing there, is a corollary of that freedom of movement. It follows that the prohibition of discrimination is applicable to recipients of services within the meaning of the Treaty as regards protection against the risk of assault and the right to obtain financial compensation provided for by national law when that risk materialises. The fact that the compensation at issue is financed by the Public Treasury cannot alter the rules regarding the protection of the rights guaranteed by the Treaty. [18] The French Government also submitted that compensation such as that at issue in the main proceedings is not subject to the prohibition of discrimination because it falls within the law of criminal procedure, which is not included within