Opinion of the Advocate General — ECLI:EU:C:2015:351
Date: 2015-06-03
Language of the case: Spanish
Subject matter: Right of establishment;Freedom to provide services;Transport
Procedure: Reference for a preliminary ruling
Origin: Spain

Summary — Judgment of the Court (Second Chamber), 15 October 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Question raised concerning a dispute confined within a single Member State — Inclusion in the light of the potential interest of undertakings from other Member States to exercise activities in that State (Art. 267 TFEU) 2. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Scope — Services in the field of transport — Roadworthiness tests of vehicles — Not included (European Parliament and Council Directive 2006/123, Art. 2(2)(d)) 3. EU law — Interpretation — Texts in several languages — Independent interpretation – Directive 2006/123 — Differences between the various language versions — Account to be taken of the overall scheme and purpose of the legislation in question (European Parliament and Council Directive 2006/123, Art. 2(2)(d)) 4. Freedom of establishment — Exceptions — Activities connected with the exercise of official authority — Scope — Activities of vehicle roadworthiness testing centres — Power to take vehicles off the road which have safety defects representing an imminent danger — Not included (Art. 51, first para., TFEU; European Parliament and Council Directive 2009/40, Art. 2) 5. Freedom of establishment — Restrictions — National legislation which subjects authorisation to open a roadworthiness testing centre to the condition that there is a minimum distance between the testing centres and a market share not exceeding 50% — Unlawful — Justification — Consumer protection and road safety in accordance with the principle of proportionality — To be determined by the national court (Art. 49 TFEU) 1. See the text of the decision. (see paras 35, 36) 2. Article 2(2)(d) of Directive 2006/123 on services in the internal market must be interpreted as meaning that vehicle roadworthiness testing activities are excluded from the scope of application of that directive. In the first place, according to that provision, that directive does not apply to services in the field of transport falling within the scope of application of Title VI of the FEU Treaty. The use of the terms ‘services in the field of transport’ thus demonstrates the intention of the EU legislature not to restrict the exclusion set out in that provision merely to means of transport in themselves. Therefore, that exclusion covers not only any physical act of moving persons or goods from one place to another by means of a vehicle, aircraft or waterborne vessel, but also any service inherently linked to such an act. In the second place, that interpretation is supported by the purpose of Directive 2009/40 on roadworthiness tests for motor vehicles and their trailers, on roadworthiness tests for motor vehicles. In that regard, Directive 2009/40 and Directive 2014/45 on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40 were adopted on the basis of Article 71 EC and Article 91 TFEU respectively, both of those provisions being included respectively in the EC Treaty and the TFEU under the Title ‘Transport’ and constituting the legal basis expressly authorising the EU legislature to lay down measures to improve transport safety. It is clear from the documents preparatory to the adoption of the Services Directive that the EU legislature intended that the services governed by the provisions adopted on the basis of Article 71 EC were to be excluded from the scope of application of that directive. (see paras 39, 45, 46, 48, 49, 54, operative part 1) 3. See the text of the decision. (see paras 41-43) 4. The first paragraph of Article 51 TFEU must be interpreted as meaning that the activities of vehicle roadworthiness testing centres, referred to by national legislation, are not connected with the exercise of official authority within the meaning of that provision, notwithstanding the fact that the operators of those centres have the power to take vehicles off the road in cases where vehicles display, during the control, safety defects entailing an imminent danger, where that power to take vehicles off the road is exercised under the following conditions: – that, first, State supervision was established by the national legislation at issue, in accordance with the requirements of Article 2 of Directive 2009/40 on roadworthiness tests for motor vehicles and their trailers, and – that, secondly, the owner of a vehicle which has been taken off the road has the right to lodge a complaint with a technical adviser, who is an official of the administration responsible for supervision and control of roadworthiness testing centres, and that that adviser may amend the decision to take the vehicle off the road. Moreover, in the event of an objection by the owner of the vehicle to its being taken off the road, the public authorities competent for traffic and policing are alone entitled to adopt physically coercive measures. The power to take vehicles off the road enjoyed by the operators of roadworthiness test centres in cases where they identify defects entailing imminent danger is thus not coupled with any physically coercive powers. (see paras 58-61, operative part 2) 5. Article 49 TFEU must be interpreted as precluding national legislation which makes the authorisation for an undertaking or group of undertakings to open a vehicle roadworthiness testing centre subject to the condition, first, that there is a minimum distance between that centre and centres belonging to that undertaking or group of undertakings which are already authorised and, secondly, that that undertaking or group of undertakings will, if such an authorisation is granted, not hold a market share in excess of 50%, unless it is established that that condition is genuinely appropriate in order to achieve the objectives of consumer protection and road safety and does not go beyond what is necessary for that purpose. First, such restrictions are liable to hinder or render less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the FEU Treaty. Secondly, concerning the lack of objective justification for those restrictions, as regards, in the first place, compliance with minimum distances between centres belonging not to competing undertakings but to a single undertaking or group of undertakings, it is by no means established that such a condition allows, in itself, the objective of encouraging operators to establish themselves in remote areas of the territory to be achieved. Concerning, in the second place, the prohibition on operators from holding a market share in excess of 50%, in so far as such a condition is liable to affect the prior activity of the roadworthiness testing centres in the region concerned and the structure of the market, it does not immediately appear to contribute to consumer protection. In that regard, in relation to the objective connected with the quality of the service, the content of roadworthiness testing is harmonised at EU level. (see paras 67, 78-81, 84, operative part 3)