Opinion of the Advocate General — ECLI:EU:C:2015:159
Date: 2015-03-10
Language of the case: Italian
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, in the light of the foregoing observations, I take the view that a measure such as that at issue in the main proceedings, which requires SOAs to ‘have their seat in [Italian] territory’, cannot be justified on any ground of public policy or public security. 58. Therefore, I consider that the answer to the first question referred for a preliminary ruling by the referring court should be that Article 16 of the Services Directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which requires a company seeking to provide certification services to have its registered office in the territory of the Member State in which the services are to be provided. V – Conclusion 59. In view of the foregoing considerations, I propose that the Court should reply as follows to the Consiglio di Stato: (1) Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as precluding a national provision such as that at issue in the main proceedings, which requires a company seeking to provide certification services to have its registered office in the territory of the Member State in which the services are to be provided. (2) The certification activities carried out by ‘certification organisations’ (SOAs) are not directly and specifically connected with the exercise of official authority. 1 Original language: Spanish. 2 OJ 2006 L 376, p. 36. 3 To be precise, in Duomo Gpa and Others (C‑357/10 to C‑359/10, ECR, EU:C:2012:283) the Court did not examine whether the legislation at issue in that case was compatible with the provisions of the Services Directive relating to freedom of establishment and freedom to provide services because it decided that the directive was not applicable ratione temporis. The same occurred in De Clerq and Others (C‑315/13, ECR, EU:C:2014:2408). In Femarbel (C‑57/12, ECR, EU:C:2013:517) the question of the applicability of Articles 14 to 18 of the Services Directive was not addressed, which was also the case in Libert and Others (C‑197/11 and C‑203/11, ECR, EU:C:2013:288) and Ottica New Line di Accardi Vincenzo (C‑539/11, ECR, EU:C:2013:591) because the directive was not applicable ratione materiae. In OSA (C‑351/12, ECR, EU:C:2014:110) the Court held that Article 16 of the Services Directive was not applicable to copyright and related rights under Article 17(11) thereof. Finally, in Société fiduciaire nationale d’expertise comptable (C‑119/09, ECR, EU:C:2011:208) the Court of Justice had the opportunity to interpret Article 24 of the Services Directive, which is the chapter relating to the quality of services, but did not examine Articles 14 to 18 of the directive. 4 As Advocate General Mayras stated in his Opinion delivered on 13 November 1974 in the first case to deal with that question, Van Binsbergen (33/74, ECR, EU:C:1974:121) concerning a rule providing that a professional must reside in the Netherlands in order to be able to provide services as legal adviser, ‘such a requirement has the inescapable effect … of preventing an adviser from being able to offer his services to individuals before the Netherlands courts when he himself is established in a State other than the Netherlands. It is therefore contrary to the freedom to provide services within the Common Market’ (italics added). The Court confirmed that approach in the judgment in Van Binsbergen, 33/74, ECR, EU:C:1974:131, in which it held for the first time that the national law of a Member State cannot, by imposing a requirement as to habitual residence within that State, deny persons established in another Member State the right to provide services, where the provision of services is not subject to any special condition under the national law applicable. See also, inter alia, Commission v Italy, C‑439/99, ECR, EU:C:2002:14, paragraph 30, and Commission v Italy, C‑279/00, ECR, EU:C:2002:89, paragraph 17 and the case-law cited. 5 Rina SpA holds 99% of the shares in SOA Rina, while Rina Services SpA holds the remaining 1%. 6 It should be noted that SOAs are profit-making undertakings responsible for providing certification services. The grant of a certificate by one of these undertakings is a prerequisite for participation by interested parties in public works contracts under Italian law. That law provides, in particular, that the SOAs are to check the technical and financial capacity of the undertakings subject to certification, the content of the declarations, certificates and documents presented by the persons to whom the certificate is issued and continued compliance with the conditions relating to the personal situation of the candidate or tenderer. Undertakings seeking to participate in procedures for the award of public contracts are legally obliged to use the certification services of SOAs. As part of their certification activities, SOAs are required to provide the relevant information to the Autorità per la vigilanza sui contratti pubblici di lavori, servizi e forniture, which monitors certification activities in order to ensure that they comply with the law. SOAs may be penalised if they infringe their legal obligations. 7 It should be recalled that, according to settled case-law, where a sphere has been the subject of exhaustive harmonisation at EU level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not of those of primary law (see, inter alia, judgments in Tedeschi v Denkavit, 5/77, ECR, EU:C:1977:144, paragraph 35; Parfümerie-Fabrik 4711, C‑150/88, ECR, EU:C:1989:594, paragraph 28; Vanacker and Lesage, C‑37/92, EU:C:1993:836, paragraph 9; Hedley Lomas, C‑5/94, EU:C:1996:205, paragraph 18; Compassion in World Farming, C‑1/96, EU:C:1998:113, paragraph 47; Commission v Italy, C‑112/97, EU:C:1999:168, paragraph 54; Monsees, C‑350/97, EU:C:1999:242, paragraph 24; DaimlerChrysler, C‑324/99, EU:C:2001:682, paragraph 32; National Farmers’ Union, C‑241/01, EU:C:2002:604, paragraph 48; Linhart and Biffl, C‑99/01, EU:C:2002:618, paragraph 18; Radlberger Getränkegesellschaft and S. Spitz, C‑309/02, EU:C:2004:799, paragraph 53; Roby Profumi, C‑257/06, EU:C:2008:35, paragraph 14; and Lidl Magyarország, C‑132/08, ECR, EU:C:2009:281, paragraph 42. See also the Joined Opinion of Advocate General Geelhoed in Commission v Austria, C‑221/00 and Sterbenz and Haug, C‑421/00, C‑426/00 and C‑16/01, EU:C:2003:46, point 45, in which the Advocate General draws attention to a certain lack of consistency in the case-law relating to this issue (point 44). 8 C‑384/08, ECR, EU:C:2010:133, paragraph 24. 9 C‑327/12, ECR, EU:C:2013:827, paragraph 48. 10 C‑327/12, ECR, EU:C:2013:827, paragraph 52. 11 See the case-law cited in footnote 7. 12 C‑357/10 to C‑359/10, ECR, EU:C:2011:283, point 61. 13 Naturally, that effect occurs solely in relation to the services not excluded from the material scope of the directive concerned. 14 See, inter alia, Barnard, C., ‘Unravelling the Services Directive’, Common Market Law Review 45, 2008, pp. 382 and 383. 15 To my mind, that conclusion is not altered at all by the Italian Government’s argument to the effect that what prevents the exercise of freedom to provide services in this case is another requirement imposed by the Italian provision concerned, which has not been discussed in the main proceedings, under which, in order to be able to operate as an SOA in Italy, a company must be formed as a limited company whose exclusive object is to carry out certification activities. The Italian Government considers that it is inconceivable that a company which is required to devote its activities exclusively to that object would provide services in that sphere on an occasional basis in Italy from its place of establishment, even if that place of establishment were outside Italy. Setting aside from the fact that that additional requirement referred to by the Italian Government is not the subject of the question referred by the Consiglio di Stato, it is my view, in any event, that the requirement of ‘exclusivity’ and the occasional nature of the services which a company established in another Member State may provide in Italy are not necessarily incompatible factors, as Article 25(1)(b) of the Services Directive appears to confirm, since it does not establish an automatic connection between the requirement of exclusivity and only one of the freedoms concerned, to the exclusion of the other. 16 C‑279/00, ECR, EU:C:2002:89, paragraph 17. 17 See judgments in Safir, C‑118/96, ECR, EU:C:1998:170, paragraph 23, and Commission v Denmark, C‑150/04, ECR, EU:C:2007:69, paragraph 38. 18 As Cornils observes, the parallel exists in so far as the legislative content of Articles 14 and 15 of the Services Directive — at least in so far as concerns the ‘prohibited’ and ‘to be evaluated’ requirements set out in those provisions, which are not specific to the freedom of establishment, among which that author includes the nationality and residence requirements in Article 14(1) — extends to service providers whether they are established in a Member State or provide services there temporarily. It is specifically for that reason that Article 14 refers to ‘not making access to, or the exercise of, a service activity in their territory subject to’ and not to ‘not making setting up an establishment in their territory subject to’. As that author states, the requirements which Member States cannot impose on service providers established in their territory cannot be imposed either on service providers which operate in their territory but are established in another Member State (Cornils, M.: ‘Artikel 9 — Genehmigungsregelungen’, in Schlachter and Ohler (eds.), Europäische Dienstleistungsrichtlinie. Nomos, Baden-Baden, 2008, p. 173, paragraph 11, and ‘Artikel 14 — Unzulässige Anforderungen’, ibid., p. 239, paragraph 2). 19 See also Schmidt-Kessel, M., ‘Artikel 16 — Dienstleistungsfreiheit’, in Schlachter and Ohler (eds.), Europäische Dienstleistungsrichtlinie, Nomos, Baden-Baden, 2008, p. 274, paragraphs 45 and 48, who, in interpreting Article 16(1)(a) of the Services Directive, identifies, in the case of legal persons, the Member State of establishment (niedergelassen) with the Member State in which they have their registered office (Satzungssitz). That was also the understanding of the Spanish legislature in Ley 17/2009, de 23 de noviembre, sobre el libre acceso a las actividades de servicios y su ejercicio (Law 17/2009 of 23 November on free access to, and exercise of, services activities) (BOE No 283 of 24 November 2009), which transposes the Services Directive into Spanish law (see, in particular, Article 5, in conjunction with Article 12(3), of that Law). 20 The Commission’s Handbook on the implementation of the Services Directive (Spanish version at http://ec.europa.eu/internal_market/services/docs/services-dir/guides/handbook_es.pdf) is not a legally binding instrument but may assist with interpretation of the provisions of the directive. 21 See, inter alia, judgments in Parodi, C‑222/95, ECR, EU:C:1997:345, paragraph 31; Commission v Germany, C‑493/99, ECR, EU:C:2001:578, paragraph 19; Commission v Italy, C‑279/00, ECR, EU:C:2002:89, paragraph 17; and Fidium Finanz, C‑452/04, ECR, EU:C:2006:631, paragraph 46. 22 See judgment in Commission v France, C‑334/94, ECR, EU:C:1996:90, paragraph 19, which equates ‘registered office’ with ‘principal establishment’. 23 C‑439/99, ECR, EU:C:2002:14, paragraph 30. 24 See also the Opinion of Advocate General Alber in Commission v Italy, C‑279/00, ECR, EU:C:2001:516. At point 30 of that Opinion, the Advocate General states, referring to the requirement for a company to maintain its registered office or a branch office on Italian territory in order to operate as an undertaking providing temporary labour, that ‘[i]rrespective of whether the requirement concerns the registered office or a branch office, it concerns in any event a permanent establishment ... Through the requirement of a permanent establishment in order to take up an economic activity in a Member State, the Treaty provision establishing the principle of freedom to provide services is deprived of all effectiveness, a provision the very purpose of which is to abolish the restrictions on the freedom to provide services for those persons who are not established in that State’. 25 See, inter alia, judgments in Bond van Adverteerders and Others, 352/85, ECR, EU:C:1988:196, paragraphs 31 and 32; Stichting Collectieve Antennevoorziening Gouda, C‑288/89, ECR, EU:C:1991:323, paragraph 11; Commission v Netherlands, C‑353/89, ECR, EU:C:1991:325, paragraph 15; Federación de Distribuidores Cinematográficos, C‑17/92, ECR, EU:C:1993:172, paragraph 15 et seq.; Ciola, C‑224/97, ECR, EU:1999:212, paragraph 13 et seq.; Commission v Spain, C‑153/08, ECR, EU:C:2009:618, paragraph 37; and Blanco and Fabretti, C‑344/13 and C‑367/13, ECR, EU:C:2014:2311, paragraph 38. 26 C‑114/97, ECR, EU:C:1998:519, paragraph 46. 27 On the subject of what must be regarded as a ‘fundamental interest of society’, see, for example, judgments in Van Duyn, 41/74, ECR, EU:C:1974:133, paragraph 17 (membership of an association or organisation representing a risk to public security and public order) and Calfa, C‑348/96, ECR, EU:C:1999:6, paragraph 22 (use of narcotic drugs). See also recital 41 in the preamble to the Services Directive: ‘The concept of “public policy”, as interpreted by the Court of Justice, covers the protection against a genuine and sufficiently serious threat affecting one of the fundamental interests of society and may include, in particular, issues relating to human dignity, the protection of minors and vulnerable adults and animal welfare. Similarly, the concept of “public security” includes issues of public safety’. 28 See judgment in Rutili, 36/75, ECR, EU:C:1975:137, paragraph 26. 29 See, by analogy, judgment in Commission v Spain, C‑114/97, ECR, EU:C:1998:519, paragraph 47.