C-388/01

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 10 October 2002 1

I — Introduction 3. Article 1 of the Decree provides inter alia as follows:

1. The present infringement proceedings concern advantageous charges for admis- sion to public museums, monuments, gal- ' 1 . Admission to national memorials, leries, archaeological digs and memorial museums, galleries, ancient archaeological parks and gardens in Italy granted to Italian sites and parks and gardens shall normally nationals and residents within the territory require the purchase of a ticket, whose of the administrative authority running the validity need not depend on the date of cultural site in question and who are aged issue.' over 60 or 65 years. The Commission considers this to infringe Articles 12 EC and 49 EC.

4. Article 4 of the Decree provides inter alia as follows:

II — Legal framework: national law '3. Admission shall be free to:

6. Following numerous complaints con- cerning advantageous admission charges 5. The only Article of Decree No 375 of the for persons aged over 60 or 65 years for same Ministry of 28 September 1999, the Doge's Palace in Venice and for local entitled Regulations amending Ministerial museums in Padua, Treviso and Florence, Decree No 507 of 11 December 1997 the Commission undertook various inves- providing for the introduction of admission tigations and concluded that advantageous tickets for national memorials, museums, charges were granted only to Italian galleries, ancient archaeological sites and nationals or Italian residents. Because it memorial parks and gardens, 3 provides did not receive any response to its repeated inter alia as follows for national sites but requests, the Commission commenced not for regional or local ones: infringement proceedings by letter of for- mal notice dated 1 July 1999. The Italian Republic replied by a letter dated 5 October 1999. Since the Commission regarded that reply as inadequate, it delivered a reasoned opinion to the Italian Republic on 2 February 2000. The Commission sent further letters to the Italian Republic on 'Article 4 of Decree No 507 of 11 December 13 November 2000 and on 2 April 2001, 1997 is amended as follows: by which it asked for more detailed infor- mation. The Commission did not receive any answer, and therefore brought an action before the Court which was regis- tered in the Registry on 8 October 2001.

(a) Sentence 1 of Paragraph 3(e) is replaced by the following: "Citizens of the European Union who are aged less than 17 years or 61 years or over". 7. By its action, the Commission applies for the Court:

IV — Cause of action

12. The Commission submitted that purely economic considerations could not provide grounds of general interest justifying the A — Submissions of the parties measure. The Court recognised the need to safeguard the cohesion of the tax system only where there was a direct link between the advantageous admission charges for 9. The Commission is of the view that the Italian nationals and the taxes they paid. 5 provision for advantageous admission charges infringes Articles 12 EC and 49 EC. Its reason was that the freedom to 4 — Case C-45/93 Oiiiimissnui v Spjm [1994] KIR 1-911. provide services included freedom of tour- 5 — Case C-204/90 Bacbiihiim v Belgium [1992| HCR I-249.

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The Italian Republic had proved neither local museums infringed Articles 12 EC and necessity nor proportionality. Nor had it 49 EC. submitted that granting advantageous admission charges to all citizens of the European Union would impair the cohesion of the tax system. Moreover, the only taxpayers who benefited were those who actually claimed the advantageous admis- sion charges. Finally, it was inconsistent to rely on the argument as to the cohesion of 16. The Italian Government first pointed the tax system while enacting Decree out that cultural sites belonged to the State No 375/99 extending the advantage to all or to local authorities and that it was for citizens of the Union for national sites. their owners to determine conditions of admission, in particular the tariff structure.

19. The Italian Government also pointed B — Analysis out that the Commission's allegations related to local sites, for example the Doge's Palace in Venice, for which the central Government was not responsible. That followed from Article 47 of the 23. On the basis of the Commission's Decree of the President of the Republic application, what must be examined is No 416 of 24 July 1977. whether the Italian tariff provisions are compatible with Articles 12 EC and 49 EC, that is to say with the general prohibition on discrimination and the freedom to provide services. Since Article 49 EC con­ tains a specific prohibition on discrimi­ nation, the Italian provisions are to be assessed against it first. 20. As regards the reduction available to residents, a distinction had to be drawn between State and local museums, namely that the latter were likewise not the responsibility of the Government. 24. In order to make that assessment, the first thing to be considered is whether the measures concerning sites owned by local authorities are to be attributed to the Member State (the Italian Republic). Then, the question as to whether those national provisions constitute a restriction within 21. As regards State-owned sites, and in the meaning of Article 49 EC is to be particular memorial parks and gardens, the considered. If they do, then the question exemption from the admission fee was arises as to whether there is any justifi­ provided for by a framework agreement cation for the measures. between the Ministry of Cultural Heritage and Culture and the Ministry of Finance (Inter-Ministerial Decree of 6 June 1992), which provided for financial compensation. It followed that there was consideration for the free admission. 1. Decentralised bodies

27. The next question is whether the Italian tariff provisions attacked by the Commis- sion restrict the freedom to provide ser- vices. In this connection, there must be borne in mind the case-law of the Court and the related academic literature 7 30. As regards the museum sector, which the present case also concerns, the Court

7 — See Rofes i Pujol, M.I., 'Las prestaciones de servicios de los museos de los Estados miembros y la libre circulación de los touristas', Cuadernos europeos de deusto 1995, pp. 175 ff.; 8 — Case 186/87 Cowan [1989] ECR 195, paragraph 15; see Tichadou, E., 'Der Schutz der Touristen in der Rechtsprec- also Joined Cases 286/82 and 26/83 Luisi and Carbone hung des Europäischen Gerichtshofs', Zeitschrift für euro- [1984] ECR 377, paragraph 16. parechtliche Studien 2002, pp. 299 ff. 9 — Commission v Spain (cited above, footnote 4), paragraph 5.

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has held that, 'visiting museums is one of nationals of other Member States, as non- the determining reasons for which tourists, residents are in the majority of cases as recipients of services, decide to go to foreigners.' 12 another Member State' and that there is therefore 'a close link between the freedom of movement which they enjoy under the Treaty and museum admission con- ditions'. 10

33. According to the Court's case-law, even 31. Moreover, the Court concluded that, a provision which refers to residence in a 'discrimination with regard to admission to particular part of a Member State cannot museums may have an effect on the con- be justified by the fact that domestic ditions under which services are provided, nationals are also disadvantaged by it. 13 including the price thereof, and may there- fore influence the decision of some persons to visit a country'. 11

3. Possible justification for the discrimi- nation

38. There being thus no justification for the 35. It is first to be observed that discrimi- discriminatory price reductions, the Italian natory national provisions cannot be justi- Republic has infringed Articles 12 EC and fied on the ground of so-called general 49 EC. interest, that is to say for reasons not provided for expressly in primary law such as Article 30 EC: only provisions which apply without distinction may be justified in this way. This principle applies also to the freedom to provide services, which is what the present case concerns.

V — Costs

36. However, even if the Court were to accept in a case such as the present that in principle the measures could be justified by reasons in the general interest, aims of a purely economic nature cannot constitute such reasons. 15 39. Under Article 69(2) of the Court's Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for. Since the Commission has applied for the Italian Republic to be 37. As regards the Italian Government's ordered to pay the costs, and the latter argument concerning the cohesion of the has been unsuccessful, the Italian Republic is to be ordered to pay the costs.

14 —Case 159/78 Commission v Italy [1979] ECR 3247, paragraph 22. 16 — Bachmann (cited above, footnote 5), paragraphs 21 ff. and 15 — Case C-35/98 Verkaoijen [2000] ECR 1-4071, paragraph Case C-300/90 Commission v Belgium [1992] ECR I-305, 48. paragraphs 14 ff.

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