C-224/97

CIÓLA ν LAND VORARLBERG

OPINION OF ADVOCATE GENERAL MISCHO delivered on 10 December 1998

1. In this case, the Verwaltungsgerichtshof 3. According to Paragraph 4(2) of that Law, (Administrative Court of Appeal), Austria, the administrative authority may grant derog­ has referred two questions for a preliminary ations from the rule in subparagraph (1) ruling. By the first, the Austrian court seeks where it is guaranteed that such alterations an interpretation of the Community provi­ will not impair the interests of countryside sions relating to the free provision of services preservation and, in particular, will not in relation to a ban imposed on an Austrian obstruct views over lakes or where those company prohibiting it from hiring out more alterations are necessary for reasons of public than a specific quota of moorings to boat safety. owners resident outside Austria. The second question is whether the principle of the pri­ macy of Community law also applies in rela­ tion to an individual administrative decision.

4. The company ABC-Charter Gesellschaft m b H rented certain plots of land situated in the shore area of the Bodensee (Lake Con­ stance) where it was allowed to build 200 moorings for boats. Background to the main proceedings

5. Upon an application from that company, the Bezirkshauptmannschaft (District Admin­ istrative Authority), Bregenz, addressed a 'Bescheid' to it on 9 August 1990, that is to say an individual administrative decision, point 2 of which provides: 2. The Landschaftsschutzgesetz (Countryside Preservation Law) of the Land of Vorarlberg provides, in the first sentence of Paragraph 4(1), that any alteration to the countryside around lakes or in a strip of land 500 metres from the shoreline, calculated at mean water 'With effect from 1 January 1996 a maximum level, is to be prohibited. of 60 boats owned by persons resident abroad may be accommodated in the harbour. Until that time the proportion of boats owned by * Original language: French. persons resident abroad shall be continuously

'1. Are the provisions concerning the 6. By decisions of 10 July 1996, the Unab- freedom to provide services to be inter- hängiger Verwaltungssenat (Independent preted as precluding a Member State Administrative Authority) of the Land Vorar- from prohibiting the operator of a lberg found Mr Ciola, acting as managing yachting harbour, on pain of criminal director of the company ABC-Boots-Charter prosecution, from hiring out more than Gesellschaft m b H and of the company ABC- a specific quota of moorings to boat Bootswerft Gesellschaft mbH, guilty of having owners who are resident in another 'allocated', on 25 January 1995 and 12 May Member State? 1995, moorings to two boat owners who were resident abroad, namely in the Principality of Liechtenstein and in the Federal Republic of Germany, even though the maximum foreign quota of 60 boats owned by persons resident 2. Does Community law, in particular the abroad was exceeded. For each of those provisions concerning the freedom to offences, a fine of ATS 75 000 was imposed. provide services in conjunction with Article 5 of the EC Treaty and Article 2 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Trea- ties on which the European Union is founded (OJ 1994 C 241, p. 21; OJ 1995 7. Mr Ciola had not therefore observed the L 1, p. 1), give the provider of the serv- conditions laid down in point 2 of the deci- ices referred to in Question 1 above, sion of 9 August 1990 and had thus com- who is resident in Austria, the right to mitted an administrative infringement within assert that the prohibition issued in the the meaning of Paragraph 34(1 )(f) of the Land- terms set out in Question 1 in an admin- schaftsschutzgesetz, according to which any istrative decision (Bescheid) adopted in

Applicability of Article 59 of the EC Treaty

14. First of all, Mr Ciola's company provides, through a cross-border hire contract, a serv­ ice to a boat owner residing in another Member State by making available to him, during the life of the contract, of a mooring 11. The Verwaltungsgerichtshof rightly recalls that, according to the case-law of the Court, Article 59 of the Treaty 'covers not only 1 — Joined Cases 286/82 and 26/83 [1984] ECR 377. restrictions laid down by the State of destina­ 2 — Case 186/87 [1989] ECR 195, paragraph 15.

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OPINION OF MR MISCHO — CASE C-224/97

for his boat. It can therefore be said that this 18. It points out first of all that the contested service 'crosses the frontier' throughout the decision wrongly uses the term 'foreign quota' year. because the restriction does not relate to the nationality of boat owners but to their resi- dence.

15. Secondly, the owner himself crosses the Austrian border, once or several times a year, to use the actual benefit he has under the hire 19. Nor, however, is there any indirect dis- contract, namely not having to tow his boat crimination because, it says, the restriction each time from his place of residence to Lake also affects Austrian citizens residing in Constance. O n those occasions, it is therefore another Member State. also the recipient of the service who crosses the frontier in order to use a service.

22. At the hearing before the Court, the Land 25. It may be noted here that the concern to Vorarlberg argued, however, that the restric­ limit the influx of 'foreigners' has, in the past, tion in question was objectively justified by been taken into consideration by Community overriding reasons relating to of the public law, namely in relation to second homes. interest. In the absence of the restriction, boat However, this has always been the subject of owners residing in the other Member States, an express derogating provision. prepared to pay higher rents, would be able to rent the majority of the moorings. There would no longer be sufficient places for per­ sons living in the area and there would be strong pressure on the authorities of the Land to increase the overall ceiling of 200 moor­ ings. This, it says, would have adverse con­ 26. Thus the Protocol (No 1) on the acquisi­ sequences on the countryside and on the tion of property in Denmark provides 'Not­ quality of water of Lake Constance, which is withstanding the provisions of this Treaty, used as a water reservoir for more than 4 mil­ Denmark may maintain the existing legisla­ lion people. tion on the acquisition of second homes'.

27. The Act concerning the conditions of accession of the Republic of Austria, the 23. The fact that a measure such as that in Republic of Finland and the Kingdom of question in the main proceedings is not appli­ Sweden and the adaptations of the Treaties on cable without distinction to all provisions of which the Union is founded provides, in services, whatever the origin or destination, Article 70, that 'Notwithstanding the obliga­ rules out any question as to the possible tions under the Treaties on which the Euro­ existence of overriding reasons relating to the pean Union is founded, the Republic of Aus­ public interest capable of justifying such a tria may maintain its existing legislation measure. 5 regarding secondary residences for five years from the date of accession'. 6

the Court, according to which Article 59 of which would flow from an affirmative reply the Treaty entails not only elimination of all to the first question in the particular case discrimination against persons providing ser­ where 'the criminal nature of the conduct vices or persons receiving services by reason complained of is based, not on the infringe­ of their nationality, but also by reason of the ment of a general norm, but on the contra­ circumstance that the person concerned is vention of a restriction imposed on a com­ established in a Member State other than that pany, of which the appellant is managing in which the service is to be performed. director, by means of an administrative deci­ sion (Bescheid) adopted specifically against that company' and where 'there is no general abstract provision restricting the number of services which may be offered by the com­ pany to recipients resident in another Member State'. 29. The question whether the Land Vorarl­ berg could possibly find another criterion, which would be compatible with Commu­ nity law, for resisting the pressure to increase the overall ceiling of 200 moorings is not the subject-matter of the order for reference and does not therefore fall to be examined in this 32. The Verwaltungsgerichtshof points out in Opinion. this regard that 'since its judgment in Case 6/64 Costa ν ENEL, 7 the Court of Justice has held the view that the law stemming from the Treaty could not be overridden by domestic legal provisions' and that in its judg­ ment in Simmenthal8 the Court held inter alia that 'a national court which is called 30. In response to the first question, it must upon, within the limits of its jurisdiction, to therefore be concluded that Article 59 of the apply provisions of Community law is under Treaty is to be interpreted as precluding a a duty to give full effect to those provisions, Member State from prohibiting the operator if necessary refusing of its own motion to of a marina, upon penalty of criminal pro­ apply any conflicting provision of national ceedings, from hiring out moorings above a legislation'. specific quota to boat owners who reside in another Member State.

37. The Austrian Government also explains 35. As far as the Austrian Government is that the binding effect of the decision which concerned, the question is 'whether the prim­ prevents the Verwaltungsgerichtshof from acy of Community law must also be upheld annulling it for unlawfulness serves legal cer­ in relation to individual specific decisions of tainty and protection of legitimate expecta­ administrative authorities' and it is therefore tions of the various parties in question and necessary to determine 'whether Community therefore 'the principles of legal certainty, law may have an effect on the rules relating protection of legitimate expectations and pro­ to the enforceability of administrative deci­ tection of rights duly acquired must be sions'. weighed in this specific case against the interest in observing the principle of non­ discrimination laid down by Community law'.

39. I cannot share the Austrian Republic's view of the nature of the legal problems raised 42. In any case, the binding effect of admin- in this case. istrative decisions does not seem to be abso- lute since the Austrian Government tells us that 'the appellant in the main proceedings had and still has the possibility of asking the competent authority, according to domestic procedural rules, to amend its decision or its operative part'. Such à procedure is appar- 40. The matter before the national court is ently provided for by Paragraph 68 of the not, in my view, one concerning an applica- Allgemeines Verwaltungsverfahrensgesetz tion for annulment, on grounds of illegality, (General Law on Administrative Procedure). directed against the 1990 decision which could We are told that the appellant has the possi- be barred by a time limit the compatibility of bility of invoking Community law in this new which with Community law would be the procedure and, if he were not to obtain satis- subject of the preliminary question. The ques- faction, to lodge appeals. tion, rather, is whether the national court must refrain from applying that decision in the specific case before it.

41. N o r do I discern, in the main proceed- 43. However, it is not necessary to enter into ings, any issue related to legal certainty, the those considerations. The sole legal issue posed protection of legitimate expectations or of by the second preliminary question is, in my properly acquired rights, as raised by the view, whether the Verwaltungsgerichtshof Austrian Government. If the appeal court must, in assessing the lawfulness of the appel- were to annul the sentence imposed on lant's action, disapply a decision incompatible Mr Ciola and if the company in question were with Community law, notwithstanding the to be able, pursuant to Article 59 of the Treaty, fact that the decision concerned is a specific to hire out moorings as freely to boat owners individual administrative measure and not a residing in another Member State as to boat general, abstract rule.

45. As the national court itself points out, in its judgment in Costa the Court held that 'the law stemming from the Treaty, an indepen­ dent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as 15 Community law and without the legal basis 48. Finally, in one of the Rewe cases, the of the Community itself being called into Court held that 'a national authority may not question'. apply to a person legislative or administrative measures which are not in accordance with an unconditional and sufficiently clear obligation imposed by the directive'. What applies in relation to an unconditional and sufficiently precise obligation laid down in a directive obviously also applies in relation to an uncon­ 46. Likewise, it follows from the judgment in ditional and sufficiently precise obligation of Lück 1 1that the direct effect of a provision of primary Community law, such as that laid the Treaty excludes 'the application of any down in Article 59 of the Treaty. national measure incompatible with it' and from the judgment in Case 48/71 Commis- sion ν Italy 1 2 that the direct effect of Com­ munity law entails 'a prohibition having the full force of law on the competent national authorities against applying a national rule recognised as incompatible with the Treaty'.

49. It follows from these few citations from established case-law that Community law overrides any provision of domestic law. It also follows that the direct effect and primacy 47. Still more clearly, the Court held in the of Article 59 of the Treaty together oblige the French maritime code case 1 3 that 'since the national court to disapply prohibitions laid provisions of Article 48 and of Regulation down in domestic provisions, including

54. It must therefore be concluded, in response to this second question, that Com- munity law confers on persons providing ser- 52. As far as the Republic of Austria is con- vices the right to assert that a prohibition cerned, that conclusion must apply in relation such as that in question in the main proceed- to circumstances occurring after 1 January ings, contained in a specific individual admin- 1995, the date of its accession to the Euro- istrative decision, must remain unapplied pean Union. Article 2 of the Act concerning where an administrative authority or a court the conditions of accession of the Republic of of law must determine whether conduct post- Austria, the Republic of Finland and the dating the accession of the Republic of Aus- tria may be sanctioned.

16 — Case C-213/89 Factortame and Others [1990] ECR I-2433, paragraph 19. 17 — Case 103/88 [1989] ECR 1839, paragraphs 30 to 33. 18 — Cited above.

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CIOLA ν LAND VORARLBERG

Conclusion

55. In view of this analysis, I propose that the two questions referred by the Ver­ waltungsgerichtshof be answered as follows: