C-263/99
ECLI:EU:C:2001:141
- Súd
- Súdny dvor Európskej únie
- IČS
- 61999CC0263
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR ALBER — CASE C-263/99
OPINION OF ADVOCATE GENERAL ALBER delivered on 8 March 2001 1
I — Introduction State of the European Economic Commu- nity resident in Italy.
1. In these proceedings for failure to fulfil obligations the Commission asks the Court to declare that by adopting certain provi- 4. According to Article 3(2)(a), (b) and (c), sions on the activity of traffic consultant, this condition applies to all the partners in the Italian Republic has breached the the case of a partnership, to unlimited principles of freedom of establishment and partners in the case of a limited partnership freedom to provide services laid down in or a limited share partnership, and to the the Treaty. directors of any other type of firm.
5. According to Article 3(4) of the Law, I I — Italian law authorisation is granted only if a security, the amount of which is determined by ministerial decree, is lodged at the same time with the provincial authorities. 2. The rules at issue are those in Law No 264 of 8 August 1991 on the activity of traffic consultant (hereinafter: 'the Law').
6. According to Article 8(1) of the Law, the minimum and maximum fees for traffic consultancy business are set annually by 3. Under Article 3(1)(a) of the Law, the decision of a committee. provincial authorities issue authorisation to carry out traffic consultancy business to the owner of an undertaking only if he is an Italian citizen or a citizen of a Member
7. Article 9(4) of the Law states that any- 1 — Original language: German. one carrying out such business without the
I - 4198
COMMISSION V ITALY
required authorisation will be subject to a 11. As there was no response to the rea- fine of between ITL 5 million and ITL 20 soned opinion from the Italian Govern- million. ment, the Commission initiated on 2 July 1999 the present action, registered at the Court on 16 July 1999, in which it claims that the Court should:
I I I— Proceedings (a) declare that by placing restrictions on the pursuit of the activity of traffic consultant the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC; 8. By letter dated 16 November 1993, the Commission brought to Italy's attention the fact that the Law was not consistent with Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) and asked Italy to provide more (b) order the Italian Republic to pay the detailed information on the Law and on costs. the measures envisaged in order to remedy that inconsistency with Community law within two months.
12. The Italian Government submits that the dispute has been deprived of purpose.
9. Having received no reply to that letter, the Commission, by letter of formal notice dated 7 November 1995, put the Italian Government on notice to submit observa- tions within two months. IV — Submissions of the parties
13. In the application the Commission 10. As the Commission considered the states that the residency requirement for reply by the Italian Government of citizens of other Member States is not 21 March 1996 to be unsatisfactory, it sent compatible with the general prohibition the Italian Government a reasoned opinion on discrimination on grounds of nationality on 14 July 1997, calling on it to adopt in Article 12 EC or the more specific measures consistent with Articles 43 EC prohibition in Article 13 EC on all restric- and 49 EC within two months. tions on freedom of establishment.
I - 4199
OPINION OF MR ALBER — CASE C-263/99
14. The Commission submits that the resi- or simply the different conditions for dency requirement negates the freedom to authorisation. provide services under Article 49 EC as it completely rules out occasional provision of services by providers resident in other Member States. 19. In the absence of any Community harmonisation in the sector, there are grounds of general interest — that is, the need to verify the professional qualifica- tions of service providers, their integrity 15. The provisions relating to the require- and propriety, and whether they have ment to lodge a security, the setting of sufficient financial resources — which jus- minimum and maximum fees and the tify the requirement for authorisation. application of fines in the case of the business in question being carried out without authorisation do not take account of the fact that service providers in other Member States may already be subject to comparable rules in their country of origin. 20. The Italian Republic also states that an amendment to the Law is being considered which would remove the requirements of residency and of lodging a security as well as the setting of a maximum fee, and that for this reason the proceedings have 16. On 10 November 1999 the Italian become deprived of purpose. Republic lodged its defence, in which it submits that the condition of residency should be understood rather in the sense of establishment. 21. In its reply of 6 December 1999 the Commission states that the planned amend- ment to the Law is irrelevant for the purpose of these proceedings. 17. Italy claims that it is necessary to set a minimum fee as abolition of the fee would destabilise the market and lower the quality of services. 22. As regards the requirement for a mini- mum fee, the Commission points out that fees below the minimum level set may be obtained not only — as Italy fears — by a reduction in quality, but also by better 18. It also points out that it is difficult to business management. Furthermore, con- know whether the Commission is contest- sumers may check quality themselves, by ing the requirement for authorisation itself means of comparison.
I - 4200
COMMISSION V ITALY
23. In its rejoinder, lodged on 24 February Member States or also to Italian citizens. If 2000, the Italian Republic once again it applied only to foreigners, this would maintains that the proceedings have clearly constitute discrimination on become deprived of purpose since, follow- grounds of nationality. The principle of ing a legislative amendment in the inter- equality of treatment with nationals prohi- vening period, the condition of residency bits discriminatory treatment on grounds of has been replaced by one of establishment nationality. If the criterion of residency was and the requirement to lodge a security has applied in a non-discriminatory manner, been abolished. this would constitute covert discrimination since residency requirements 'are liable to operate mainly to the detriment of nation- als of other Member States'. 3
V — Opinion
24. The argument of the Italian Govern- 26. The residency requirement results in a ment that the proceedings have become limitation on freedom of establishment; the deprived of purpose following the amend- scope of that requirement is extremely ment of certain provisions of the Law is not broad. In the case of a partnership all the relevant: it is established case-law that the partners must be resident in Italy; in the question whether a Member State has case of a limited partnership or limited failed to fulfil its obligations must be share partnership, the requirement applies determined by reference to the situation to all unlimited partners; for all other firms prevailing in the Member State at the end the residency requirement is applied to of the period laid down in the reasoned directors. opinion and the Court cannot take account of any subsequent changes. 2
27. It is thus more difficult for operators A — Breach of Article 43 EC resident in other Member States to set up an establishment in Italy. As a rule, partners reside in their country of origin and would be obliged to transfer residency to Italy in 25. It is not clear from the wording of the order to pursue their business there. The Law whether the requirement of residency Court has held that similar residency con- in Italy applies only to citizens of other ditions provided for by the legislation of
2 — Case C-316/96 Cummissnm v Italy |1997| ECR I-7231, 3 — Case C-350/96 Clen Car [1998] ECU I-2521, paragraph paragraph 14.
I - 4201
OPINION OF MR ALBER — CASE C-263/99
other Member States are an unlawful B — Breach of Article 49 EC restriction on the freedom of establish- ment. 4That view should also be applied to the case in question.
31. A Member State cannot make estab- lishment subject to the same conditions as 28. Italy has put forward no arguments to those relating to the provision of services justify such discrimination under Article 46 without depriving the right to provide EC for reasons of public security or public services from another State of effect. 6The order, a justification of this kind being valid provision of services, unlike establishment, only if there exists a genuine and suffi- takes place only from time to time and does ciently serious threat affecting one of the not therefore require any long-term inte- fundamental interests of society. 5 gration into the commercial activities of the recipient State. Accordingly, the conditions imposed must differentiate between those providing services and those who wish to establish themselves on a long-term basis, since otherwise the freedom to provide services would be of no practical use. This 29. The Italian Government maintains, is made strikingly clear by the condition of however, that the condition of residency residence as a requirement for the issue of should be understood in the broader sense authorisation. That obligation prevents an of establishment. It claims that the word operator residing in another Member State 'residency' is a flaw in the wording of the from providing services in Italy on a short- Law or a mistake in the drafting of the text, term basis. For this reason the contested which should be corrected by an interpre- provisions constitute an unlawful restric- tation in accordance with Community law. tion under Article 49 EC.
30. That argument cannot, however, be accepted since, if the text was to be interpreted only with the correction added, 32. National rules which make the provi- such a state of affairs would create grave sion of certain services on national territory legal uncertainty for those affected by the by an undertaking established in another Law. Member State subject to the issue of administrative authorisation constitute a 4 — Case C-221/89 Factortame [1991] ECR I-3905, paragraph 32, Case C-114/97 Commission v Spain [1998] ECR I-6717, paragraph 44, and Case C-355/98 Commission v Belgium 6 — Case C-76/90 Saeger [1991] ECR I-4221, paragraph 13; [2000] ECR I-1221, paragraph 31. also Case C-222/95 Parodi [1997] ECR I-3899, paragraph 5 — Case 30/77 Boucherecm [1977] ECR 1999, paragraph 35. 31.
I - 4202
COMMISSION V ITALY
restriction on the freedom to provide 35. The Italian Republic submits that the services. 7The requirement for authorisa- requirement of authorisation is justified by tion may itself, in principle, constitute an the need to verify whether the service unlawful restriction. provider holds the necessary professional qualifications, to verify his integrity and propriety, and whether he has sufficient financial resources.
33. Such a restriction can only be compa- tible with Article 49 EC if the rules are applied in a non-discriminatory manner and are specifically justified. This is the case if the rules are justified by imperative 36. However, it is not necessary to require requirements in the general interest, if they such specific authorisation where the gen- are suitable for securing the attainment of eral interest is already safeguarded by rules the objective which they pursue and if they applicable to the service provider in the do not go beyond what is necessary to Member State where he is established. 10 In attain it. 8 expecting all undertakings to meet the same requirements in order to obtain authorisa- tion, the Italian rules do not allow account to be taken of obligations to which the service provider is already subject in the Member State where he is established. 11
34. As authorisation is required for both Italian service providers and those from other Member States, it is not discrimina- tory per se. Despite that fact, the require- ment, as a rule, constitutes a greater restriction on services provided from other 37. If there is already a procedure to check Member States since the providers are the requirements for the consultancy busi- subject both to the laws of the State of ness in the country of origin of the service origin and the laws of the Member State in provider, the checks in this instance may which the service is provided. However, institute unlawful duplication. Proof of there is no intention to discriminate inher- professional qualifications and the meeting ent in this condition as — unlike the case of particular conditions as to probity of the residency requirement — national should be sufficient. The Italian Republic service providers must also meet it. 9 does not take that into account and thus
7 — Saegcr (cited above in footnote 6), paragraph 14; sec also 10 —Case 279/80 Webb J1981] ECR 3305, paragraph 17; Parodi (cited above in footnote 6), paragraph 32, Case Saeger (cited above in footnote 6), paragraph 15, Vander C-43/93 Vander liist [ 1994| ECR I-3803, paragraph 15, and Etst (cited above in footnote 7), paragraph 16, Case Commission v Belgium (cited above in footnote 4), para- C-3/95 Reisebüro Broede |1996| ECR I-6511, paragraph graph 35. 28, and Commission v Belgium (cited above in footnote 4), 8 — Case C-55/94 Ccbbard [1995) ECR I-4165, paragraph 37. paragraph 37. 9 — Holoubek, Schwarze, EU-Kommentar. Isted. 2000, Baden- 11 — Commission v Belgium (cited above in footnote 4), Baden, Article 49 EC, paragraph 77. paragraph 38.
I - 4203
OPINION OF MR ALBER — CASE C-263/99
breaches the principle of the country of 42. The fact that that payment is required origin. constitutes a restriction for every service provider on the freedom to provide ser- vices, since the provider is obliged to make the payment in advance. Although this measure is not discriminatory, in that both national and foreign service providers are expected to lodge a security, it represents an 38. It is also of critical importance to know inadmissible restriction on the freedom to on what terms authorisation is granted. provide services within the meaning of According to the Court's case-law it is not Article 49 EC if it is not justified by necessary to stipulate a residency require- imperative requirements in the general ment for directors. Checks can be made interest (a claim not put forward by the and penalties imposed on any undertaking Italian Republic). established in a Member State whatever the place of residence of its directors. 12 In this way, consumer protection is given due consideration.
43. Setting minimum and maximum fees for the pursuit of the activity of traffic consultant in Italy may also be considered to constitute a restriction on the freedom to 39. Furthermore, we are dealing here, as I provide services. have already explained, with discrimina- tion, either overt or covert, on the basis of nationality. 13
44. The fact that maximum fees are set may make it more difficult for service providers from another Member State to 40. Italy has made no claim to justification provide their services on the Italian market based on Article 46 EC relating to grounds as, not being resident in Italy, they incur of public security or public order. greater costs than national service provi- ders and can, therefore, only work in a higher price range.
41. Under Article 3(4) of the Law, author- isation is granted only when a security has been lodged with the provincial authorities. 45. That measure may, nevertheless, be considered admissible if it is applied in a non-discriminatory manner, justified by 12 — Commission v Spain (cited above in footnote 4), paragraph imperative requirements in the general 47. 13 — See paragraph 17 of this Opinion. interest, suitable for securing the attain-
I - 4204
COMMISSION V ITALY
ment of the objective which it pursues, and 49. That measure, too, is applied in a non- does not go beyond what is necessary in discriminatory manner, so that it is neces- order to attain it. 14 sary to consider whether it is justified by imperative requirements in the general interest. The Italian Republic claims that to abolish minimum prices might destabi- lise the market, which might lead to unfair 46. The requirement applies both to Italian competition and in turn to a drop in the service providers and to those from other quality of service provision to the detriment Member States and is therefore applied in a of the consumer. The Commission rightly non-discriminatory manner. It might, how- objects that prices below the minimum ever, constitute covert discrimination since level may be the result not only of a service providers resident in another Mem- reduction in quality as feared by Italy but, ber State are generally subject, as men- principally, also of improved cost structure tioned above, to higher costs. There is no in the provision of the service, that is to say specific intention to discriminate, however, from good management. If the absence of given that, since it may be equally difficult minimum fees were actually to influence for national service providers (for different the quality of the service, consumers would financial reasons) to abide by the maximum be able to find this out by means of rate, it has effects also on those national comparisons and draw the appropriate service providers. 15 conclusions.
47. In any case, the Italian Government has not invoked imperative requirements in the general interest which might justify the restriction. It must be concluded accord- 50. Moreover, a restriction of this kind ingly that the measure constitutes a restric- would not be proportionate as it would go tion. beyond what is necessary to attain the objective. Setting uniform quality criteria according to which service providers must operate would be sufficient to ensure quality and protect consumers. 48. The provision relating to the setting of minimum fees also restricts the freedom to provide services. This is because it does not allow service providers to offer their ser- vices at a price which might make their services more attractive to the customer than those of another firm on the basis of cost. 51. If the conditions for authorisation laid down in Article 3(1) of the Law are con- trary to Community law, the provision 14 — Gebbard (cited above m footnote 8), paragraph 37. 15 — Holouliek, Schwarze, EU-Kommentar (cited above in concerning the fine to be paid if the activity footnote 9), paragraph 77. of traffic consultant is carried out without
I - 4205
OPINION OF MR ALBER — CASE C-263/99
previous authorisation under Article 9(4) VI — Costs of the Law is all the more so.
52. Under Article 69(2) of the Rules of In fact, the fine is the legal consequence of Procedure, the unsuccessful party shall be the failure to observe the condition of ordered to pay the costs where such a claim authorisation. The lawfulness of that fine is made. In so far as the Italian Republic is is therefore dependent on the lawfulness of unsuccessful, it should be ordered to pay the relevant provision. the costs.
VH — Conclusion
53. In view of the foregoing observations, I propose that the Court rule as follows:
(1) By placing restrictions on the pursuit of the activity of traffic consultant in Law N o 264 of 8 August 1991 the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC.
(2) The Italian Republic is ordered to pay the costs.
I - 4206