Opinion of the Advocate General — ECLI:EU:C:2006:781
Date: 2006-12-14
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Italy

summary of this requirement, see, for example, Analir and Others, paragraph 25; Case C‑390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 33; Case C‑496/01 Commission v France, paragraph 39; Case C‑255/04 Commission v France, paragraph 44; and Commission v Austria, paragraph 37. 10 – See, to that effect, Säger, paragraph 13, and Vander Elst, paragraph 17. 11 – See, to that effect, Vander Elst, paragraph 15. 12 – See, for example, Case 279/80 Webb [1981] ECR 3305, paragraph 17; Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 34; and Canal Satélite Digital, paragraph 38. 13 – See, to that effect, Canal Satélite Digital, paragraph 36. 14 – See the references cited in footnote 3. 15 – See the judgment in Case C-340/89 Vlassopoulou [1991] ECR I-2357. For a summary, in the context of the freedom to provide services, of the principle of mutual recognition in the absence of common rules, regard may also be had to the Opinion of Advocate General Kokott in Commission v Spain, points 43 to 45. 16 – See Joined Cases 110/78 and 111/78 Van Wesemael and Others [1979] ECR 35, paragraph 30. 17 – See, to that effect, the judgment in Corsten, paragraphs 46 to 48, and the Opinion of Advocate General Kokott in Commission v Netherlands, point 38. 18 – See Case C-439/99 Commission v Italy, paragraph 28. 19 – Commission v Germany, paragraph 47. 20 – Case C-451/99 [2002] ECR I-3193, paragraphs 57 to 64. 21 – Case C‑355/98 Commission v Belgium, paragraphs 35 to 38. 22 – Case C‑171/02 Commission v Portugal, paragraphs 58 to 61. 23 – See, in particular, Case C-358/98 Commission v Italy [2000] ECR I‑1255, paragraph 17. The Court held likewise in relation to Netherlands legislation making the carrying-on, within the context of the freedom to provide services, of the business of private security subject to authorisation (see Commission v Netherlands, paragraphs 16 to 20). 24 – See Analir and Others, paragraph 38, and Canal Satélite Digital, paragraph 35. 25 – See Canal Satélite Digital, paragraph 41. 26 – See, in particular, Case C-19/92 Kraus [1993] ECR I-1663, paragraph 32; Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 37; CaixaBank France, paragraph 11; and Case C-65/05 Commission v Greece [2006] ECR I-0000, paragraph 48. 27 – See, in particular, the Opinion of Advocate General Tizzano in CaixaBank France and my Opinion in Marks & Spencer, points 25 to 40. See also, Mischo, J., ‘Les restrictions à la liberté d’établissement: la nécessité d’une clarification’, Mélanges en hommage à F. Schockweiler, Nomos Verlagsgesellschaft Baden‑Baden, 1999, p. 445. 28 – See Case C-298/99 Commission v Italy [2002] ECR I-3129, paragraph 64. 29 – See, for a summary of this burden of proof, Analir and Others, paragraph 35; Case C-42/02 Lindman [2003] ECR I-13519, paragraph 25; and Case C‑496/01 Commission v France, paragraph 73. See also, with regard to the free movement of goods, Case C‑270/02 Commission v Italy [2004] ECR I-1559, paragraph 22. 30 – See, in particular, Commission v Germany, paragraph 52; Case C-222/95 Parodi [1997] ECR I‑3899, paragraph 31; Case C‑355/98 Commission v Belgium, paragraph 27; Case C-439/99 Commission v Italy, paragraph 30; Case C-171/02 Commission v Portugal, paragraph 33; and C-452/04 Fidium Finanz [2006] ECR I-0000, paragraph 46. 31 – See Commission v Germany, paragraph 52; Parodi, paragraph 31; and Fidium Finanz, paragraph 46. 32 – Case 33/74 [1974] ECR 1299, paragraph 14. Subsequently, Article 4(1) of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ 1977 L 78, p. 17) provided that ‘activities relating to the representation of a client in legal proceedings or before public authorities shall be pursued in each host Member State under the conditions laid down for lawyers established in that State, with the exception of any conditions requiring residence, or registration with a professional organisation, in that State’. 33 – Paragraphs 15 and 16. See to the same effect, including as regards the representation of a client in legal proceedings following the harmonisation of such matters, the judgment in Case C‑294/89 Commission v France [1991] ECR I-3591. 34 – Commission v Germany, paragraph 55. 35 – Case C-496/01 Commission v France, paragraph 74. 36 – See, to that effect, Case C-65/05 Commission v Greece, paragraph 48. 37 – It should be borne in mind that, in that case, the Court held that the French legislation prohibiting the remuneration of sight accounts constituted ‘a serious obstacle to the pursuit of their activities … affecting their access to the market,’ because it deprives foreign companies of the possibility of ‘competing more effectively … with the credit institutions traditionally established in the Member State of establishment’ (paragraphs 12 and 13). See also my reasoning in relation to the restriction on the freedom of lawyers to provide services through the setting of minimum fees in my Opinions in Cipolla and Macrino and Capodarte, points 62 to 65. 38 – See to that effect, with regard to the free movement of goods, the judgments in Case 116/84 Roelstraete [1985] ECR 1705, paragraph 21, and Case C-249/88 Commission v Belgium [1991] ECR I-1275, paragraph 7. See also, with regard to the freedom to provide services, my Opinion in Cipolla, points 66 to 70. 39 – Directive of 29 June 2000 on combating late payment in commercial transactions (OJ 2000 L 200, p. 35). 40 – Lindman, paragraph 25. 41 – See Case 231/83 Cullet [1985] ECR 305, paragraphs 32 and 33. 42 – It will thus be noted that the Court has already held that the requirement to conduct the business of trade-fair organiser on an exclusive basis is contrary to the freedom to provide services (see Case C-439/99 Commission v Italy, paragraph 32). 43 – The very definition of the term given by Cornu, G. (under his editorship), Vocabulaire juridique, Quadrige, Seventh edition, PUF, 2005. 44 – See, in particular, Case C‑187/98 Commission v Greece [1999] ECR I‑7713, paragraph 54. See also, in a slightly different form of words, Case C-248/044 Koninklijke Coöperatie Cosun [2006] ECR I-0000, paragraph 79. 45 – See Canal Satélite Digital, paragraph 41.