Opinion of the Advocate General — ECLI:EU:C:2001:141
Date: 2001-03-08
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
Origin: Italy

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Examination of the merits by the Court — 
Situation to be taken into consideration — Situation at the end of the period laid down 
in the reasoned opinion 
(Art. 226 EC) 
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SUMMARY — CASE C-263/99 
2. Freedom to provide services — Restrictions justified in the general interest — 
Whether permissible — Conditions 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC) and Art. 60 (now Art. 50 
EC)) 
3. Actions for failure to fulfil obligations — Proof of failure — Burden of proof on 
Commission — Production of evidence showing failure 
(Art. 226 EC) 
4. Freedom of movement for persons — Freedom of establishment — Freedom to 
provide services — National provision restricting access of nationals of other Member 
States to the pursuit of activities as transport consultants — Not permissible 
(EC Treaty, Arts 52 and 59 (now, after amendment, Arts 43 EC and 49 EC)) 
1. In connection with an action under 
Article 226 EC, the question whether a 
Member State has failed to fulfil its 
obligations must be determined by 
reference to the situation prevailing in 
the Member State at the end of the 
period laid down in the reasoned 
opinion and the Court cannot take 
account of any subsequent changes. 
(see para. 12) 
2. The freedom to provide services, being 
one of the fundamental principles of 
the Treaty, may be restricted only by 
rules justified by the public interest and 
applicable to all persons and under­
takings operating in the territory of the 
Member State where the service is 
provided, in so far as that interest is 
not safeguarded by the rules to which 
the provider of such a service is subject 
in the Member State where he is 
established. 
(see para. 23) 
3. In proceedings under Article 226 EC 
for failure to fulfil an obligation, it is 
incumbent upon the Commission to 
prove the allegation that the obligation 
has not been fulfilled and to place 
before the Court the information 
needed to enable it to determine whe­
ther the obligation has not been ful­
filled. 
(see para. 27) 
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COMMISSION V ITALY 
4. By subjecting the pursuit of the activity 
of transport consultant to possession of 
an administrative authorisation, failing 
which liability to penalties is incurred, 
and by making its issue subject to the 
condition that nationals of other Mem­
ber States reside within the country and 
lodge a security, a Member State fails 
to fulfil its obligations under Arti­
cles 52 and 59 of the Treaty (now, 
after amendment, Articles 43 EC and 
49 EC). 
(see para. 29 and operative part) 
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