Opinion of mr advocate-general trabucchi

Mr President,

Members of the Court,

1. On the subject of the movement of workers, the provision of services and the right of establishment, the Court has hitherto had occasion to concern itself with the application, in particular cases, of the clause safeguarding public policy. The Judgments in Cases 41/74, Van Duyn, 67/74, Bonsignore, 36/75, Rutili and 48/75, Royer, laid down basic principles and criteria on this subject and began to outline the limits of the powers of derogation exceptionally allowed to the States in carrying out the task of safeguarding public policy on their territory.

2. Unfortunately, the Milan court has not stated for what reason the accused woman was in Italy as the guest of the Italian defendant. In the absence of this information, the Court can only act on the basis of assumptions. If, as was stated before the Court by Counsel for the two defendants, she was there as an au pair employed as a family help to look after the children of the co-defendant, she would undoubtedly come into one of the categories of person upon whom the Treaty confers the right to move freely within the Community. As this would in fact be work performed for a consideration (board and lodging), she could be classified as coming within a master and servant relationship or, if this were not the case, she would at least come under the alternative heading of provision of services.

3. As soon as this legal point is settled and assuming that the foreign national who is accused in the proceedings pending before the Pretore di Milano can, on the basis of their application to the concrete case which the court dealing with the substance of the case is called upon to make, avail herself of the provisions of the Treaty concerning the free movement of persons, the national court must then decide whether the national provisions, considered earlier, do not conflict with such a right in imposing the said obligations either directly upon the alien or upon any person who gives him accommodation on the national territory. In this connexion, consideration must be given to other questions of interpretation raised by the Pretore di Milano.

4. In the present case, any infringement of a fundamental right would be the outcome not of a Community measure, in reviewing the legality of which this Court has largely developed its case-law on fundamental rights, but from a measure adopted by the State. This is why the question has been raised whether the principles laid down by the Court on this subject can also be applied to establishing whether there is anything incompatible between the measure or conduct of the State and Community law.

5. The protection of the rights of man accordingly forms part of the Community system, even as against the States, inasmuch as the fundamental right relied upon involves a relationship or a legal situation the regulation of which is among the specific objects of the Treaty.

6. The question which may present greater difficulty concerns the onerousness of the conditions in which the report must be made and of the penalties provided for non-observance.

1 Translated from the Italian.