# C_2005217EN.01002701.xml

| 3.9.2005 | EN | Official Journal of the European Union | C 217/27 |
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3.9.2005

EN

Official Journal of the European Union

C 217/27

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Action brought on 17 June 2005 by the Commission of the European Communities against the Republic of Austria

(Case C-257/05)

(2005/C 217/53)

Language of the case: German

An action against the Republic of Austria was brought before the Court of Justice of the European Communities on 17 June 2005 by the Commission of the European Communities, represented by Enrico Traversa and Wolfgang Bogensberger, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

| 1. | declare that, by requiring in Paragraph 21(4) of the Kesselgesetz (Law on boilers) (1) that only applicants having a head office in Austria may be approved as a boiler inspection body, the Republic of Austria has failed to fulfil its obligations under Article 49 EC; |
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1.

declare that, by requiring in Paragraph 21(4) of the Kesselgesetz (Law on boilers) (1) that only applicants having a head office in Austria may be approved as a boiler inspection body, the Republic of Austria has failed to fulfil its obligations under Article 49 EC;

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| 2. | order the Republic of Austria to pay the costs. |
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2.

order the Republic of Austria to pay the costs.

Pleas in law and main arguments

In accordance with Article 49 EC, limitations on the freedom to provide services, within the Community, of Member State nationals who are established in a different Member State from that of the recipient of the services are prohibited.

Paragraph 21 of the Republic of Austria's Kesselgesetz governs the requirements for the issue of a licence to operate as a boiler inspection body. Under Paragraph 21(4), only those applicants established in Austria may be licensed as boiler inspection bodies. An inspection body for pressurised equipment established in another Member State, wishing to offer its services in Austria, is therefore faced with the necessity first to establish a branch in Austria.

That legislation constitutes a limitation on the freedom to provide services within the meaning of Article 49 EC. It also follows from the Court's case-law that a requirement of establishment runs directly contrary to the freedom to provide services, since it makes the provision of services through undertakings established in another Member State impossible.

The grounds stated by the Republic of Austria — such as, for example, public safety or the protection of workers and consumers — are not such as to justify that limitation on the freedom to provide services. A limitation on the freedom to provide services may — according to the Court's case-law — be justified only to the extent that public interest is not already protected by laws to which the service provider is subject in the Member State where it is established. The requirement of establishment is disproportionate for the guarantee of quality of supervision with regard to the interests which it is supposed to protect, since public safety and the protection of workers and consumers may already be ensured by the system laid down in the Kesselgesetz for the authorising and supervision of inspection bodies, without the necessity of an establishment within the Member State.

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(1)  BGBl. No 211/1992.

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