Opinion of the Advocate General — ECLI:EU:C:2015:472
Date: 2015-07-16
Language of the case: German
Subject matter: Right of establishment;Internal market - Principles;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, categorisation and analysis of that case-law, see Advocate General Wahl’s Opinion in Venturini (C‑159/12 to C‑161/12, EU:C:2013:529, points 26 to 53). 6 Formerly Article 45 EC, as referred to in Article 2(2)(i) of Directive 2006/123. 7 See Paragraph 120(1) of the Austrian Gewerbeordnung. 8 See, however, Opinion of Advocate General Mayras in Reyners (2/74, EU:C:1974:59, p. 664), according to which the concept entails ‘the power of enjoying the prerogatives outside the general law, privileges of official power, and power of coercion over citizens’. 9 This constitutes settled case-law since the judgment in Reyners (2/74, EU:C:1974:68, paragraph 45). 10 See judgment in Commission v Germany (C‑54/08, EU:C:2011:339, paragraph 93). In paragraph 94 of the same judgment, the Court went on to state that the fact that some documents and agreements are subject to mandatory authentication, in default of which they are void, does not call that conclusion into question, as it is normal for the validity of various documents to be subject, in national legal systems and in accordance with the rules laid down, to formal requirements or even compulsory validation procedures. 11 See, to that effect, judgments in Thijssen (C‑42/92, EU:C:1993:304, paragraph 22); Commission v Spain (C‑114/97, EU:C:1998:519, paragraph 38); Servizi Ausiliari Dottori Commercialisti (C‑451/03, EU:C:2006:208, paragraph 47); and Commission v Germany (C‑404/05, EU:C:2007:723, paragraph 38). 12 See, to that effect, judgment in Reyners (2/74, EU:C:1974:68, paragraphs 51 and 53) 13 See, to that effect, judgments in Thijssen (C‑42/92, EU:C:1993:304, paragraphs 21 and 22); in Commission v Austria (C‑393/05, EU:C:2007:722, paragraphs 36 and 42) and in Commission v Germany (C‑404/05, EU:C:2007:723, paragraphs 38 and 44). 14 See judgment in Commission v Spain (C‑114/97, EU:C:1998:519, paragraph 37). 15 See judgment in Anker and Others (C‑47/02, EU:C:2003:516, paragraph 61) 16 See judgment in Haralambidis (C‑270/13, EU:C:2014:2185, paragraph 58). 17 And even if they did, such activities on the basis of public law would constitute a severable element of Mr Hiebler’s activities, which means that, for the rest, his activities are subject to the directive. 18 According to this recital, ‘Services of general economic interest are services that are performed for an economic consideration and therefore do fall within the scope of this Directive. However, certain services of general economic interest, such as those that may exist in the field of transport, are excluded from the scope of this Directive and certain other services of general economic interest, for example, those that may exist in the area of postal services, are the subject of a derogation from the provision on the freedom to provide services set out in this Directive.’ 19 See the definition of ‘service’ in Article 4, point 1, of Directive 2006/123. 20 See Article 2(2)d of the directive. On this concept, see also points 26 to 43 of my Opinion in Trijber and Harmsen (C-340/14 and C-341/14), delivered on the same day as the present Opinion. 21 Indeed, the Court has just clarified in its judgment in Rina Services and Rina, (C‑593/13, EU:C:2015:399, point 28), that once a national provision is caught by Article 14 there is no possibility of justification. 22 See Article 123 of the Austrian Gewerbeordnung. 23 Unless, of course, the activities of chimney sweeps constitute a service of general economic interest, which I examine below – and which I strongly doubt. 24 Even though the principle of proportionality is not mentioned expressly in Article 10(4), it appears to me evident that – as a general principle of EU law – it must be complied with. 25 This is the English term employed by the directive when it elaborates on the principle of proportionality in Article 15(3)(c). The English term used by the Court in its case-law on the fundamental freedoms tends to be ‘appropriate’ instead, see, by way of example, judgment in Ottica New Line (C‑539/11, EU:C:2013:591, paragraph 33). 26 C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 112. 27 C‑539/11, EU:C:2013:591, paragraph 57. 28 The term ‘necessity’ employed in Article 15(3)(b) appears to me slightly confusing in this context, as Article 15(3)(b) is clearly about the justification of certain requirements. 29 By virtue of Article 61 of the Rules of Procedure of the Court of Justice, the Court invited the parties to elaborate on the possibility of a service of general economic interest in the case at issue. The reply given by the Austrian government does not contain any elements justifying the applicability of Article 15(4) of the directive. 30 The Commission representative has admitted as much during the hearing. 31 The expression now also appears in Article 14 TFEU as well as in Article 36 of the Charter of Fundamental Rights of the European Union. 32 See judgment in BUPA and Others v Commission (T‑289/03, EU:T:2008:29, paragraph 172). 33 Ibid. 34 See judgment in Merci convenzionali Porto di Genova (C‑179/90, EU:C:1991:464, paragraph 27). 35 See Opinion of Advocate General Ruiz-Jarabo Colomer in Federutility and Others (C‑265/08, EU:C:2009:640, point 54). 36 Ibid., point 55. 37 See E. Szyszczak, The regulation of the state in competitive markets in the EU, Hart Publishing, Oxford and Portland, Oregon, 2007, p. 248. 38 See also footnote 29 of this Opinion. 39 See Opinions of Advocate General Cruz Villalón in Femarbel (C‑57/12, EU:C:2013:171, point 22) and in Rina Services and Rina (C‑593/13, EU:C:2015:159, point 39). See also my Opinion in Trijber and Harmsen (C‑340/14 and C‑341/14, points 36 and 54). 40 This handbook has already been referred to in support of argument by the Court in judgment in Femarbel (C‑57/12, EU:C:2013:517, paragraphs 37 and 45). 41 See Handbook on the implementation of the Services Directive, Office for Official Publications of the European Communities, 2007, p. 58 of the English language version, available at http://ec.europa.eu/internal_market/services/docs/services-dir/guides/handbook_en.pdf. 42 C‑179/90, EU:C:1991:464. 43 C‑320/91, EU:C:1993:198.