C-55/93
ECLI:EU:C:1994:238
- Súd
- Súdny dvor Európskej únie
- IČS
- 61993CC0055
- Zdroj
- eur-lex.europa.eu ↗
VAN SCHAIK
OPINION OF ADVOCATE GENERAL JACOBS delivered on 9 June 1994 *
My Lords, to drive a vehicle registered in the Nether lands which has not been tested for roadwor thiness.
1. In the present case, the Hoge Raad (Supreme Court) of the Netherlands has referred a number of questions on the com patibility with the Treaty of national rules concerning the annual testing of motor vehi cles. The Hoge Raad has referred the ques tions in the course of an appeal by Mr van Schaik against his conviction for driving a 3. The issue arises in the following way. By motor vehicle without a valid test certificate, Article 9(g) of the Wegenverkeerswet, the contrary to Article 9(a)(1) of the Wegenver Minister for Traffic and Waterways may keerswet (Road Traffic Law). 1 authorize natural or legal persons to issue test certificates for motor vehicles registered in the Netherlands. By Article 16 of the Decree on the periodical testing of vehicles 2 and trailers of 28 April 1980, authorization may be granted to persons who operate test ing stations, or who operate undertakings which carry out vehicle repairs, provided that certain conditions are satisfied. It 2. Mr van Schaik does not appear to dispute appears that those conditions can in practice that he was driving a vehicle without a valid only be satisfied by persons who operate certificate. However, he argues that the sys undertakings established in the Netherlands. tem of vehicle testing laid down in the Neth Mr van Schaik argues that, under Commu erlands is contrary to Community law, nity law, persons established in other Mem invoking in particular Articles 5, 30, 62, 85 ber States should have an equal right to be and 86 of the Treaty. He claims that, in view authorized to issue test certificates for vehi of that alleged incompatibility, he is entitled cles registered in the Netherlands.
* Original language: English. 1 — Inserted by the Law of 26 October 1978 (Staatsblad 595Ì, as 2 — Staatsblad 217, as amended by the Decree of 3 December amended by the Law of 19 June 1985 (Staatsblad 375). 1985 (Staatsblad 640).
I - 4839
OPINION OF MR JACOBS — CASE C-55/93
4. The Hoge Raad has referred the following (3) (a) Must Article 62 of the Treaty be questions: interpreted as meaning that national legislation such as the vehicle testing regulations is incompatible with it since the conditions laid down for the grant of authorization under Article 9(g) of the Wegenverkeer swet may, in the sector of the provi '(1) (a) Must Article 30 of the Treaty be sion of maintenance services, result interpreted as meaning that national in a loss of custom for foreign legislation such as the vehicle testing garage undertakings since in the case regulations outlined [in the order of Netherlands cars they are unable for reference] can be regarded as a to grant test certificates? measure having equivalent effect within the meaning of that article, in the light of the factors mentioned at paragraph 6.9 [of the order]?
(b) Or must Article 62 be interpreted, in the light of Article 55 of the Treaty, as meaning that national leg islation such as the vehicle testing (b) Or must Article 30, on the other regulations does not constitute an hand, be interpreted as meaning that infringement of that article because national legislation such as the vehi the conduct of tests by the autho cle testing regulations does not con rized garages for the issue of the test stitute an infringement thereof, certificate is to be regarded as being because it seeks to protect a general carried out in the exercise of the interest justified under EEC law, is State's public powers? not concerned with trade in spare parts for cars, and its restrictive effect on trade goes no further than is necessary?
(4) (a) Must Articles 5, 85 and 86 of the Treaty be interpreted as precluding national legislation such as the vehi (2) If Question 1(a) is answered in the affir cle testing regulations which enables mative: Must Article 36 of the Treaty be garage owners established and interpreted as meaning that national leg authorized in the Netherlands to islation such as the vehicle testing regu exempt customers who entrust their lations is nevertheless compatible with cars to them for servicing from the Article 30 of the Treaty because it is jus payment of the costs arising in con tified on the ground of the protection of nection with the test and the issue of public security and the health and life of the test certificate, with the result humans? that owners of motor vehicles are
I - 4840
VAN SCHAIK
encouraged to give their custom to trailers, 3 or if it also concerns other those garage owners? vehicles such as passenger vehicles (except taxis) and other light vehicles?'
(b) Or are authorized garage businesses 5. What is at issue in these proceedings is the to be regarded under Article 90(2) requirement that roadworthiness tests must of the Treaty as undertakings be carried out in the Member State where the entrusted with the operation of ser vehicle is registered. The essential questions vices of general economic interest of Community law, in my view, are the com whose fulfilment would be impeded patibility of that requirement with the Treaty if they were unable to grant the provisions on the freedom to provide ser abovementioned cost exemption? vices and the effect of Directive 77/143. I will examine the directive first.
The provisions of Directive 77/143 (5) To what extent does it make any differ ence to the reply to the abovementioned questions that the adverse effect of the national legislation on intra- Community trade in goods and services and on intra-Community competition is more or less confined to border areas and manifests itself on a limited scale? 6. Directive 77/143 provides for the partial harmonization of the content and frequency of roadworthiness tests on motor vehicles. Article 1 of the directive provides that:
(6) To what extent does it make any differ ence to the reply to the abovementioned questions if the national legislation con cerns solely vehicles of categories men 'In each Member State, motor vehicles regis tioned in the annex to Council Directive tered in that State and their trailers and semi 77/143/EEC of 29 December 1976 on trailers shall undergo periodic roadworthi- the approximation of the laws of the Member States relating to roadworthi ness tests for motor vehicles and their 3 — OJ 1977 L 47, p. 47.
I - 4841
OPINION OF MR JACOBS — CASE C-55/93
ness tests in accordance with this Directive Article 5 provides that: and its Annexes.'
By Article 2(1): '1 . Member States shall take such measures as they deem necessary to make it pos sible to prove that a vehicle has passed a roadworthiness test complying with at least the provisions of this Directive.
'The categories of vehicles to be tested, the frequency of the tests and the items which must be tested are listed in Annexes I and II.'
However Article 3 provides, inter alia, that Member States may increase the number of items to be tested and the frequency of the compulsory tests, and extend the periodic 3. Each Member State shall, on the same test requirement to other categories of vehi basis as if it had itself issued the proof, cle. recognize the proof issued in another Member State to the effect that a motor vehicle registered in that other State, together with its trailer or semi-trailer, have passed a roadworthiness test com plying with at least the provisions of this Directive.' 7. By Article 4:
'Roadworthiness tests within the meaning of 8. Directive 77/143 did not originally this Directive shall be carried out by the require the testing of vehicles (other than State or by the bodies or establishments des taxis or ambulances) with not more than ignated and directly supervised by the State.' eight passenger seats. However, Annex I of
I - 4842
VAN SCHAIK
the directive was subsequently amended to 10. It follows from those provisions that a include the periodic testing of such vehi Member State may require any motor vehicle cles. That amendment did not take effect registered in that State to undergo periodic 5 until 1 January 1994 at the earliest, and is roadworthiness tests carried out by bodies or therefore not directly relevant to the present establishments on its territory. By Article 5, proceedings. As we have seen, however, the Member State concerned may specify Article 3 provides that Member States may what certificates are to be issued as proof of extend the periodic test requirement to vehi roadworthiness. A Member State is required cles not listed in the directive. It seems to me to recognize a corresponding certificate that that provision is relevant to these pro issued in another Member State, but only in ceedings, and that it is therefore necessary to respect of vehicles registered in that other consider the effect of the directive. State.
11. It seems to me that the system of the directive is based on the premise that a 9. The scheme of the directive is clear. By Member State can exercise direct supervision Article 1, the vehicles specified in Annex I only over testing establishments on its own must be required to undergo periodic road territory. That is why a vehicle is to be tested worthiness tests. The tests are to be carried in its State of registration. The driver of such out in the State in which the vehicle is regis a vehicle does not enjoy the right to have the tered. By Article 4, testing establishments vehicle tested in another Member State. On designated by a Member State must be the other hand, test certificates issued by the directly supervised by that State. Although Member State of registration must be recog the directive lays down minimum require nized by the authorities of other Member ments in respect of categories of vehicles States as sufficient evidence that the require tested, items covered and frequency of tests, ments of the directive have been met. Member States are expressly authorized to impose higher standards and to extend the requirements of the directive to other cate gories of vehicle. Presumably, such addi tional requirements may only be imposed in respect of vehicles registered in the Member State concerned.
4 — See Article1 of Council Directive 91/328/EEC of 21 June 1991 (OJ 1991 L 178. p. 29). 12. Accordingly, there seems to me to be no 5 — See Article 7(3) of Directive 77/143, inserted by Article1 of Directive 91/328 (cited in note 4). doubt that, by virtue of the provisions of the
I - 4843
OPINION OF MR JACOBS — CASE C-55/93
directive, a driver of a vehicle registered in a as relying upon the free movement of ser Member State may be required to be in pos vices guaranteed by Article 59. Thus he session of a valid test certificate issued in that argues in effect that, as a result of being pre State. vented from having his vehicle certified in another Member State, it is made more diffi cult for him to receive two kinds of service. In the first place, he is in practice prevented from having his vehicle tested in another Member State, since such a test would not lead to the issue of any certificate recognized 13. I would add that it is not suggested in by Dutch law. Secondly, he is discouraged these proceedings that the directive is invalid. from having his car repaired and maintained Of course, if the directive were thought to in such a Member State, since he is unable to give rise to an unwarranted restriction on the enjoy the economy of combining a roadwor freedom to provide services, or on some thiness test with a general service of the car. other freedom guaranteed by the Treaty, its He points out that, under Dutch law, no validity might then be in doubt. As we shall additional charge may be levied for the issue see, however, restrictions of the kind of a test certificate if it is issued by a garage imposed by the directive are in my opinion which carried out a general service. compatible with the Treaty; thus the ques tion of the validity of the directive does not arise.
14. I turn then to the question whether restrictions of the kind at issue are compati ble with the provisions of the Treaty.
16. Mr van Schaik also invokes the principle of the free movement of goods laid down by Article 30 of the Treaty. However, although The provisions of the Treaty the testing and servicing of a vehicle in another Member State may lead to a supply of goods, namely the spare parts required to replace any parts found to be defective, it seems to me that such a supply must be regarded as incidental to the provision of ser 15. Although the Hoge Raad has referred a vices. The appropriate provision to consider number of questions on various provisions is therefore Article 59. In any event, it is of the Treaty, it seems to me that in sub clear that similar principles would apply in stance Mr van Schaik should be understood either case.
I - 4844
VAN SCHAIK
17. It seems to me that a refusal to authorize refusal to authorize garages in other Member testing establishments based in another States to carry out tests leading to a certifi Member State can indeed be regarded as a cate would amount to an indirect restriction restriction on the free movement of services on the provision of services of general main guaranteed by Article 59, although, as I shall tenance and repair; for those services will suggest, such a restriction can be justified often be provided by the garage which car under Article 56(1) as imposed for the pro ries out the test. tection of health and public safety. Contrary to the view of the Commission, it seems to me that vehicle testing and certification is indeed a 'service' within the meaning of Article 60, given that tests are normally pro vided for remuneration. I note that vehicle inspection is an activity covered by Council Directive 82/470/EEC, which has the aim of facilitating the freedom of establishment and 19. Article 59 is therefore applicable in prin the freedom to provide services in respect ciple. I would add that it is not excluded by inter alia of certain activities incidental to Article 61(1) of the Treaty, which provides transport. 6Moreover, certifying the road that: worthiness of vehicles cannot in my view be regarded as an activity connected with the exercise of official authority for the purposes of Article 55. The Court has emphasized that, as a derogation from fundamental free doms guaranteed by the Treaty, Article 55 is to be construed narrowly. 7
'Freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport [namely Articles 74 to 84] .'
18. Moreover, even if the activity of vehicle testing and certification were not itself regarded as a service, it seems to me that the For although the harmonization of vehicle testing requirements is clearly a matter which falls within the transport provisions of 6 — Sec Articles. D(a) of Council Directive 82/470/EEC of the Treaty, the provision of tests need not 29 June 1982 on measures to facilitate the effective exercise itself be regarded as a matter excluded by of freedom of establishment and freedom to provide sen-ices in respect of activities of self-employed persons in certain Article 61(1). Thus the 'services in the field services incidental to transport and travel agencies (ISIC Group 718) and in storage and warehousing (ISIC Group of transport' which are excluded from the 720) (OJ 19S2 L 213, p. 1). scope of Article 59 do not include services, 7 — See Case 2/74 Remers v Belgium [1974] ECR631 , para graphs 43 to 45 of the judgment. such as vehicle testing (or indeed vehicle
I - 4845
OPINION OF MR JACOBS — CASE C-55/93
maintenance), which are incidental or ancil freedom for the recipients of services, includ lary to the provision of transport services ing tourists, to go to another Member State proper. in order to enjoy those services under the same conditions as nationals'.
20. As Mr van Schaik points out, the free dom to provide services entails a corre sponding freedom, on the part of the con sumer, to go to another Member State in 9 order to receive the services provided. In 10 Luisi and Carbone the Court stated that: 21. It seems to me that a refusal by a Mem ber State to authorize testing establishments in another Member State (or to recognize the results of tests performed by those establish ments) can be regarded as a restriction, albeit '... the freedom to provide services includes indirect, on the right to receive services. It is the freedom, for the recipients of services, to true that such a refusal does not in itself pre go to another Member State in order to vent a motorist from having his vehicle receive a service there, without being tested in another Member State. But in prac obstructed by restrictions, even in relation to tice he will be discouraged from doing so, payments ...'. since the tests will not enable him to acquire the certificate required by law. It is clear however that the restriction will be compat ible with Article 59 if it can be justified under Article 56(1) of the Treaty. It will be 11 recalled that Article 56(1), which is extended In the 'Museum admission charges' case, to the services provisions of the Treaty by the Court upheld the Commission's submis Article 66, provides that: sion that:
'... the freedom to provide services recog nized by Article 59 of the Treaty includes the
8 — See Directive 82/470, cited above in note 6. 'The provisions of this Chapter... shall not 9 — See Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR377, paragraph 10 of the prejudice the applicability of provisions laid judgment; Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 15; and, most recently, Case down by law, regulation or administrative C-45/93 Commission v Spain ('Museum admission charg action providing for special treatment for es'), judgment delivered on 15 March 1994. 10 — Cited in note 9; see paragraph 16 of the judgment. foreign nationals on grounds of public pol 11 — Cited in note 9; see paragraphs 5 and 10 of the judgment. icy, public security or public health.'
I - 4846
VAN SCHAIK
22. In my view the restriction in question 24. For the sake of completeness I will can be justified, under Article 56(1), as a briefly discuss the relevance of the competi measure taken for the protection of public tion rules of the Treaty, which are also relied health, which must obviously be taken to upon by Mr van Schaik. By its fourth ques include the prevention of road accidents. A tion, the Hoge Raad asks whether Articles 5, Member State is entitled to protect the lives 85 and 86 of the Treaty preclude national of its citizens by requiring vehicles registered legislation which enables garages authorized in that State to undergo periodic roadworthi as testing establishments to exempt custom ness tests. Furthermore, given the impor ers from the payment of a fee in connection tance of that objective, and in the absence of with the test. As we have seen, the relevant a total harmonization of testing require Netherlands legislation not only enables ments, it seems to me that a Member State is garages to exempt customers from the pay justified in requiring such vehicles to be cer ment of such a fee, but actually requires tified by testing establishments on its terri them to do so when the test is carried out in tory. For it will then be able to exercise direct supervision over the establishments the context of a general service of the vehicle. concerned, and will be able to enforce penal sanctions in appropriate circumstances (for instance in the event of fraudulent certifica tion). As we have seen, the scheme of Direc tive 77/143 is based on precisely those prin 1 ciples. 2
25. As the Commission points out, there is no suggestion that the Netherlands legisla tion serves to authorize or reinforce an exist 23. Accordingly, a Member State is in my ing agreement or concerted practice, or to view entitled to refuse to authorize testing impose or facilitate such an agreement or establishments in other Member States. Sim practice. Contrary to the view put forward ilarly, it is entitled to refuse to recognize test by Mr van Schaik, the fact that the Nether certificates issued in other Member States in lands Government has the power to consult respect of its own registered vehicles. It is to a committee on periodic vehicle inspection be noted, however, that Mr van Schaik does which includes among its members represen not rely on a certificate issued in another tatives of the garage owners provides no evi Member State, but simply claims the right to dence of such a link with an agreement or drive without a valid test certificate. It is concerted practice. Accordingly, even if an clear that he enjoys no such right. agreement to waive a fee could be regarded as prohibited by Article 85 — a proposition which is in itself doubtful — the requirement 12 — Sec paragraphs 9 to 12 above. imposed by the Netherlands legislation
I - 4847
OPINION OF MR JACOBS — CASE C-55/93
would not amount to a breach of that Mem competition rules of the Treaty, it has not ber State's obligations under Articles 3(f), 5 been explained how Mr van Schaik could and 85(1) of the Treaty. 3 rely upon such an incompatibility in order to avoid the requirement to produce a valid test certificate.
26. As far as Article 86 of the Treaty is con cerned, no evidence has been put forward of 28. In any event, as we have seen, Directive any dominant position on the market for 77/143 permits a Member State to impose vehicle testing. periodic roadworthiness tests on any vehicle which is registered in that State, and requires such tests to be carried out by testing estab lishments on its territory which are under its direct supervision. It seems to me, therefore, 27. Finally, even if the Netherlands legisla that the directive provides a sufficient answer tion could be shown to be contrary to the to the objections raised by Mr van Schaik.
Conclusion
29. I am accordingly of the opinion that the questions referred by the Hoge Raad should be answered as follows:
Article 3 of Council Directive 77/143/EEC must be interpreted as permitting a Member State to extend the periodic testing requirements laid down by the directive to motor vehicles, registered in that State, which are not included in a category listed in Annex I to the directive. By virtue of Articles 1 and 4, the Member State may require such tests to be carried out by bodies or establishments on its territory which it designates and directly supervises.
13 — See Case C-2/91 Meng [1993] ECR1-5751 and Case C-245/91 Ohra Schadeverzekeringen [1993] ECR 1-5851.
I - 4848