Opinion of the Advocate General — ECLI:EU:C:1998:598
Date: 1998-12-10
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the J u d g m e n t 
1. Freedom to provide services — Restrictions — Quota on moorings reserved for users resident 
in another Member State — Not permissible — Whether justifiable — No justification 
(EC Treaty, Art. 59) 
2. Community law — Direct effect — Conflict between Community law and a provision of 
national law — Obligation not to apply the national law — Types of national authority con­
cerned — Types of measure covered — Administrative decision finalised in a Member State 
before its accession to the Community and entailing a prohibition incompatible with Com­
munity law — Penalty imposed after accession — Not permissible 
(EC Treaty, Art. 59) 
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SUMMARY — CASE C-224/97 
1. Article 59 of the EC Treaty must be inter­
preted as precluding a Member State from 
prohibiting the manager of a boat harbour, 
on pain of prosecution, from renting moor­
ings in excess of a specified quota to boat-
owners who are resident in other Member 
States. 
A restriction of that kind on moorings 
infringes the prohibition under the first 
paragraph of Article 59 of the Treaty of all 
discrimination, even indirect, with regard 
to providers of services. It cannot be justi­
fied by a need to reserve access to the 
moorings for local boat-owners because 
of the risk of such moorings being 
monopolised by persons resident in other 
Member States and willing to pay higher 
rental charges, since economic reasons of 
that nature cannot constitute grounds of 
public policy, public security or public 
health capable of rendering discriminatory 
national legislation compatible with Com­
munity law. 
2. Since the provisions of the EC Treaty are 
directly applicable in the legal systems of 
all Member States and Community law 
takes precedence over national law, those 
provisions create rights for the persons 
concerned which the national authorities 
must observe and safeguard, and any con­
flicting provision of national law therefore 
ceases to be applicable. 
The obligation not to apply any con­
flicting provision of national law is incum­
bent not only on the national courts but 
also on all administrative bodies, including 
decentralised authorities. Moreover, provi­
sions of national law which conflict with 
such a provision of Community law may 
be legislative or administrative, the latter 
category comprising not only general 
abstract rules but also specific individual 
administrative decisions. 
Consequently, in so far as Article 59 of 
the Treaty becomes a direct source of law 
in new Member States upon their acces­
sion, a prohibition which is contrary to 
the freedom to provide services, laid down 
before the accession of a Member State to 
the European Union not by a general 
abstract rule but by a specific individual 
administrative decision that has become 
final, must be disregarded when assessing 
the validity of a fine imposed for failure to 
comply with that prohibition after the date 
on which the act of accession entered into 
force. 
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