Judgment — ECLI:EU:C:2009:651
Date: 2009-10-22
Language of the case: Portuguese
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment
Concepts: The various activities;General
Procedure: Action for failure to fulfil obligations - successful
Origin: Portugal

Summary of the Judgment 1. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Restrictions (Art. 43 EC) 2. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Exceptions – Activities connected with the exercise of official authority – Scope (Art. 45 EC; Council Directive 96/96, Art. 2) 1. A Member State which imposes restrictions on the freedom of establishment of bodies of other Member States intending to carry on in that Member State the activity of vehicle inspection, namely, the making of the grant of authorisations subject to the public interest, the requirement of a minimum share capital of EUR 100 000, the limiting of the undertakings’ company objects and the imposition of incompatibility rules on members, managers and directors, has failed to fulfil its obligations under Article 43 EC. Even though the requirements provided for in national legislation apply in exactly the same way to operators established in the Member State concerned and to those originating in other Member States, they could lead to the prevention of operators not satisfying the criteria defined there from establishing in the Member State concerned for the purpose of carrying on the activity of vehicle inspection. In particular, the public interest criterion may open the way for an arbitrary use of the discretion on the part of the competent authorities, permitting them to refuse that authorisation to certain interested operators, although they fulfil the other conditions laid down by the legislation. Moreover, unless it is demonstrated that such measures are necessary or proportional in relation to the objective pursued, the provisions concerned cannot be considered to be justified by reasons relating to the protection of road safety. (see paras 30, 49, 53, operative part) 2. Pursuant to Article 2 of Directive 96/96 on the approximation of the laws of the Member States relating to roadworthiness tests and their trailers, where the Member State entrusts the management of vehicle roadworthiness testing establishments to private bodies, it none the less continues to exercise direct supervision over them. It is, in effect, for the Member State, pursuant to the first sentence of that article, to designate competent establishments, to put in place an authorisation procedure and to keep those establishments under direct supervision. Pursuant to the second sentence of Article 2, which mentions the precautions to be taken in the case of conflict of interests between the testing and repair of vehicles, the Member States must, in particular, ensure the objectivity and high quality of the vehicle testing. It follows from the use of the expression ‘[i]n particular’ that Directive 96/96 seeks the strict realisation by the State of those two specific qualitative objectives, namely the objectivity and the high quality of the roadworthiness testing of vehicles, in the case of conflict of interests but, all the more, in the execution of its task of supervising the private vehicle inspection establishments described in the first sentence of Article 2 of Directive 96/96. In those circumstances and provided that private bodies carrying out their activities under the active supervision of the competent public authority, responsible, ultimately, for inspections and decisions of those bodies, cannot be considered to be ‘connected directly and specifically with the exercise of official authority’ within the meaning of Article 45 EC, the activities of the private vehicle roadworthiness testing bodies do not fall within the exception provided for in Article 45 EC. (see paras 37, 42-43, 45)