62023CJ0242_RES
Case C‑242/23
Tecno*37
v
Ministero dello Sviluppo economicoandCamera di Commercio Industria Artigianato e Agricoltura di Bologna
(Request for a preliminary ruling from the Consiglio di Stato)
Judgment of the Court (First Chamber) of 4 October 2024
(Reference for a preliminary ruling – Freedom to provide services – Directive 2006/123/EC – Article 25(1) – Restrictions on multidisciplinary activities – Regulated profession – National legislation providing for, as a general rule, the incompatibility of the joint exercise of the activity of property brokerage and that of property manager – Requirements of independence and impartiality – Proportionality of the restriction – Consequences of the closure of an infringement procedure brought by the European Commission against a Member State)
Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – Assessment of the decision to close an infringement procedure – To be exercised at its discretion – Consequence – Closing by the Commission of such a procedure not resulting in the conformity with EU law of the national legislation covered by that procedure
(Art. 258 TFEU)
(see paragraphs 29-33, operative part 1)
Free movement of persons – Freedom of establishment – Freedom to provide services – Workers – Recognition of professional qualifications – Scope of application of Directive 2005/36 – Application to the sole recognition, in a Member State, of a professional qualification obtained in another Member State
(European Parliament and Council Directive 2005/36, Arts 1, 2(1), and 4)
(see paragraphs 41, 42)
Freedom of establishment – Freedom to provide services – Services in the internal market – Directive 2006/123 – Freedom of establishment of service providers – Applicability to purely internal situations
(European Parliament and Council Directive 2006/123, recitals 2, 5 and 7, Arts 1(1) and 25(1))
(see paragraphs 57-60)
Freedom of establishment – Freedom to provide services – Services in the internal market – Directive 2006/123 – Restrictions on multidisciplinary activities – Regulated profession – National legislation providing for, as a general rule, the incompatibility of the joint exercise of the activity of property brokerage and that of property management – Not permissible
(European Parliament and Council Directive 2006/123, Art. 25(1))
(see paragraphs 74-79, 81, 82, operative part 2)
Résumé
In the context of a dispute concerning the general prohibition on the joint exercise by an undertaking of the activity of property brokerage and that of property management, the Court of Justice provides clarification relating to the conditions to be met by restrictions to the exercise of multidisciplinary activities by a regulated profession in order for them to be compatible with Directive 2006/123. (
1
)
Tecno*37 is a sole trader who pursues jointly the activities of property management and property brokerage, in the capacity of estate agent.
Considering that that joint exercise of the activity of property management and that of property brokerage amounted to a situation of incompatibility within the meaning of the national legislation, the Camera di Commercio Industria Artigianato e Agricoltura di Bologna (Chamber of Commerce, Industry, Crafts and Agriculture of Bologna, Italy) decided to prohibit Tecno*37 from pursuing the activity of property brokerage.
Tecno*37 challenged that decision before the courts, including the Consiglio di Stato (Council of State, Italy), the referring court, arguing in particular that the prohibition on the combined pursuit of the activities at issue infringed EU law. In particular, in its view, the national legislation at issue is applied in a general and abstract manner with the result that the activity of property brokerage is always found to be incompatible with that of property management and precludes any case-by-case assessment of the risk of conflict of interest.
The referring court, which has doubts as to whether the restrictions laid down by that legislation are consistent with EU law, queries, in particular, whether Article 25(1) of Directive 2006/123 precludes national legislation which provides, as a general rule, that the activity of property brokerage cannot be exercised jointly with that of property management.
The Court answers that question in the affirmative.
Findings of the Court
In reaching that conclusion, the Court finds, first of all, that, by imposing a general prohibition on the joint exercise of the activities of property brokerage and property management, the national legislation at issue makes the activity of property brokerage – which is a regulated profession in Italy – subject to requirements such as those laid down in the first subparagraph of Article 25(1) of Directive 2006/123.
Next, the Court observes that, in order to guarantee consumer protection, Member States may adopt measures to ensure the independence and impartiality of the regulated professions, in accordance with point (a) of the second subparagraph of Article 25(1) of Directive 2006/123.
In the present case, since a property broker must be a third party in relation to the parties to a property transaction, it is apparent that the prohibition on the joint exercise of the activities of property brokerage and property management, in that it seeks to avert the risk of a conflict of interest, may, in principle, be regarded as appropriate for the purpose of ensuring the independence and impartiality of the regulated profession at issue.
However, it appears that such a general prohibition goes beyond what is necessary and proportionate to achieve that objective.
Although it cannot be ruled out that a conflict of interest may arise, in particular where the activities of property brokerage and property management are pursued in respect of the same or comparable properties, such a risk will not necessarily materialise in all circumstances, with the result that the existence of such a conflict of interest cannot be presumed. In addition, measures less restrictive of the freedom to provide services than a general prohibition on the joint exercise of the two activities, such as a prohibition on the joint exercise of activities restricted to the situation in which the same property is concerned, or specific obligations of transparency and information concerning that joint exercise, accompanied by an ex post review by the competent professional chambers, may make it possible to ensure the independence and impartiality of the regulated profession at issue.
Last, the Court states that the practical difficulties, relating to the impossibility of verifying that there is no conflict of interest in each transaction when the activity of property brokerage and that of property management are performed jointly in respect of the same property, are not insurmountable. Deeds of sale may indeed, for example, include express declarations stating that the estate agent, acting as property broker, does not at the same time perform the role of manager of the shared ownership property of which the building acquired forms part.
(
1
)	Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).