Opinion of the Advocate General — ECLI:EU:C:2011:736
Date: 2011-11-16
Language of the case: Italian
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Provisions of the Treaty — Respective scope thereof — Criteria (Arts 43 EC and 49 EC) 2. Freedom of movement for persons — Freedom of establishment — Freedom to provide services — Restrictions — National legislation imposing certain requirements on economic operators wishing to pursue the activities of assessment, verification and collection of taxes and other local authority revenue — Whether permissible — Not justified by reasons of general interest (Arts 43 EC and 49 EC) 1. As regards the definition of the respective scopes of the principles of freedom to provide services and of freedom of establishment, it must be determined whether or not the economic operator is established in the Member State in which it offers the services in question. In that context, the concept of establishment means that the operator offers its services on a stable and continuous basis from an establishment in the Member State of destination. On the other hand, every provision of services that is not offered on a stable and continuous basis from an establishment in the Member State of destination constitutes a provision of services within the meaning of Article 49 EC No provision of the Treaty affords a means of determining, in the abstract, the duration or frequency beyond which the supply of a service or of a certain type of service can no longer be regarded as the provision of services, and accordingly services within the meaning of the Treaty may cover services varying widely in nature, including services provided over an extended period, even over several years. Therefore, national legislation imposing certain requirements on economic operators wishing to pursue the activities of assessment, verification and collection of taxes and other local authority revenue is, in principle, capable of falling within the scope of both Article 43 EC and Article 49 EC. It would be different if, in practice, the collection of local taxes cannot be carried out without using a company established in the national territory of the Member State of destination. To the extent necessary, it would be for the referring court to determine whether this is the case. (see paras 30-33) 2. Articles 43 EC and 49 EC must be interpreted as precluding a provision under which: – economic operators, except companies in which all or a majority of the share capital is in public ownership, are required to increase, if necessary, their fully paid up capital to a minimum of EUR 10 million in order to be entitled to pursue the activities of assessment, verification and collection of taxes and other local authority revenue; – the award of those services to operators who fail to satisfy the minimum requirement of share capital is to be null and void, and – it is prohibited to obtain new contracts or participate in tender procedures for the operation of those services until the abovementioned requirement to adjust share capital has been met. Such an obligation amounts to a restriction of the freedom of establishment and the freedom to provide services in so far as, first, it contains a condition of minimum share capital and, second, it forces private operators wishing to pursue the activities at issue in the main proceedings to incorporate. Thus, such a provision impedes or renders less attractive the freedom of establishment and the freedom to provide services. In addition, that provision contains disproportionate and therefore unjustified restrictions of the freedoms laid down in Articles 43 EC and 49 EC in so far as it goes far beyond what is necessary in order to protect public authorities from non-performance by concession holders. (see paras 38, 43, 45, 46, operative part)