62014CC0293
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 16 July 2015 (
1
)
Case C‑293/14
Gebhart Hiebler
v
Walter Schlagbauer
(Request for a preliminary ruling from the Oberster Gerichtshof (Austria))
‛Directive 2006/123/EC — Freedom of establishment — Purely internal situations — Article 2(2)(i) — Activities connected with the exercise of official authority — Profession of chimney sweep — Article 10(4) — Article 15(1) to (4) — Territorial restrictions — Proportionality — Services of general economic interest’
I – Introduction
1.
‘Kärnten is lei ans’.
2.
This slogan, with which locals in the Austrian Land of Carinthia, express, in their local dialect, their pride that there is only one Carinthia, is, if taken literally, not true of the case at issue. As regards the exercise of the profession of a chimney sweep, by virtue of the local regulations the Carinthian territory is divided into a number of so-called ‘sweeping areas’. Chimney sweeps can, as a matter of principle, only offer their services in the sweeping area in which they are resident - which annoys Mr Hiebler, a master chimney sweep from Moosburg, Carinthia, who would like to offer his services outside his sweeping area.
3.
The Court is called upon to examine in the present case whether a national law such as that governing Mr Hiebler’s situation is in conformity with Directive 2006/123/EC, (
2
) the ‘Services directive’. My assessment leads me to the conclusion that it is not.
II – Legal framework
A – EU law
4.
Article 2 of Directive 2006/123 is headed ‘Scope’ and reads as follows:
‘1.   This Directive shall apply to services supplied by providers established in a Member State.
2.   This Directive shall not apply to the following activities:
…
(i)
activities which are connected with the exercise of official authority as set out in Article 45 of the Treaty;
…’
5.
Article 10 of the directive is entitled ‘Conditions for the granting of authorisation’. Its fourth paragraph reads as follows:
‘The authorisation shall enable the provider to have access to the service activity, or to exercise that activity, throughout the national territory, including by means of setting up agencies, subsidiaries, branches or offices, except where an authorisation for each individual establishment or a limitation of the authorisation to a certain part of the territory is justified by an overriding reason relating to the public interest.’
6.
Article 14 on ‘Prohibited requirements’ stipulates:
‘Member States shall not make access to, or the exercise of, a service activity in their territory subject to compliance with any of the following:
(1)
discriminatory requirements based directly or indirectly on nationality or, in the case of companies, the location of the registered office, including in particular:
(a)
nationality requirements for the provider, his staff, persons holding the share capital or members of the provider’s management or supervisory bodies;
(b)
a requirement that the provider, his staff, persons holding the share capital or members of the provider’s management or supervisory bodies be resident within the territory;
…’
7.
Article 15 of Directive 2006/123 is headed ‘Requirements to be evaluated’ and provides the following:
‘1.   Member States shall examine whether, under their legal system, any of the requirements listed in paragraph 2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph 3. Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions.
2.   Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:
(a)
quantitative or territorial restrictions, in particular in the form of limits fixed according to population or of a minimum geographical distance between providers;
…
3.   Member States shall verify that the requirements referred to in paragraph 2 satisfy the following conditions:
(a)
non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality nor, with regard to companies, according to the location of the registered office;
(b)
necessity: requirements must be justified by an overriding reason relating to the public interest;
(c)
proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.
4.   Paragraphs 1, 2 and 3 shall apply to legislation in the field of services of general economic interest only insofar as the application of these paragraphs does not obstruct the performance, in law or in fact, of the particular task assigned to them.
…’
B – Austrian law
1. At federal (national) level
8.
By virtue of the Paragraph 120 Austrian Gewerbeordnung (Crafts, Trade and Industry Code) a licence to trade as a chimney sweep is required for the cleaning, sweeping and inspection of chimney and gas flues, smoke and gas exhaust pipes and the fireplaces attached to them. In so far as chimney sweeps are required by provisions of Austrian Land legislation to carry out ‘administrative policing’ activities, in particular activities connected with fire safety regulation, building control or the like, they perform public duties and must be established in Austria for that purpose.
9.
Paragraph 123 of the Austrian Gewerbeordnung reads as follows:
‘(1)
The Land governor shall, by way of regulation, define the territorial limits applicable to the pursuit of the trade of chimney sweep. That regulation shall lay down the limits of the sweeping areas in such a way as to enable fire safety regulation activities to be carried out appropriately and to ensure the economic viability of at least two chimney sweeping businesses each employing at least two workers on a full-time basis. …
(2)
Business registrations may be granted for the purposes of pursuing the trade of chimney sweep only if they restrict the exercise of the activities provided for in Paragraph 120(1) to the relevant sweeping area. However, on occasions when delay would be dangerous, in the case of work commissioned [by the public authorities] or in the case of a change to another sweeping area as provided for in Paragraph 124, the activities provided for in Paragraph 120(1) may also be performed outside the sweeping area. …
(3)
Chimney sweeps have an obligation to carry out the activities referred to in Paragraph 120(1), within their sweeping area, in accordance with the maximum tariff applicable in the Land concerned.’
10.
According to Paragraph 124 of the Austrian Gewerbeordnung:
‘In the event of a change of the chimney sweep commissioned to sweep a particular item, the chimney sweep previously commissioned to carry out the work must promptly send a written report on the last sweeping carried out and on the condition of the item for sweeping to the chimney sweep commissioned to carry out the work in future, to the municipality and to the owner of the item for sweeping. … If there are no more than two chimney sweeps in the sweeping area concerned, a change to another sweeping area shall be permissible.’
11.
Paragraph 125(1) of the Austrian Gewerbeordnung stipulates that:
‘The Land governor must also, by way of regulation, lay down maximum tariffs. Account is to be taken in this regard of the capacity of the businesses and the interests of the recipients of the service.’
2. At federated level – Carinthian law
12.
Provisions of Austrian Land legislation contain rules imposing on the owners of combustion installations an obligation to have chimneys regularly cleaned by a chimney sweep (‘sweeping obligation’). They also stipulate that chimney sweeps must also take on fire safety regulation duties. In the Land of Carinthia, for example, these include regular fire safety inspections, as provided for in the Kärntner Gefahrenpolizei- und Feuerpolizeiordnung (Carinthian Hazard and Fire Safety Regulation Order).
13.
By virtue of Paragraph 26 of that order
‘(1)
Fire safety inspections shall, in the case of physical structures, serve to determine any conditions that may cause or encourage a fire hazard and make more difficult or prevent firefighting and the performance of rescue measures.
(2)
During the fire safety inspection, it must in particular be verified visually:
(a)
whether the provisions of this Law or the regulations and decisions adopted on the basis of this Law … have been complied with or whether there are deficiencies from the point of view of the fire safety rules;
(b)
whether there is any structural damage that represents a fire hazard;
(c)
whether there are any other circumstances relevant to fire safety or firefighting. …
(3)
The fire safety inspection must be carried out with due regard for the risk that the physical structure represents from the point of view of fire safety. It must be carried out, in the case of physical structures representing
(a)
a low fire safety risk, every 15 years;
(b)
a medium fire safety risk, every 9 years; and
(c)
a high fire safety risk, every 5 years.’
14.
Paragraph 27 of the same order states that
‘(1)
The fire safety inspection provided for in Paragraph 26(3)(a) and (b) must be carried out independently by the chimney sweep commissioned for that purpose …
…
(9)
For each fire safety inspection carried out in accordance with subparagraph (1), the owner (the person entitled to use the property or the property management company) must pay a charge. It shall be for the chimney sweep to levy that charge. …’
III – Facts, procedure and questions referred
15.
The parties to the main proceedings are chimney sweeps in the Austrian Land of Carinthia. They are in dispute as to whether Mr Hiebler may pursue his trade outside an area to which his licence relates.
16.
In accordance with the legal provisions cited above, Mr Hiebler obtained a trading licence which was limited to ‘sweeping area A’. He was also permitted to pursue his trade in another sweeping area (‘sweeping area B’), as there were no more than two chimney sweeps with their businesses located there. Sweeping area B no longer exists, however. Under a new scheme which came into effect on 27 July 2011, it was merged with another sweeping area to form a new ‘sweeping area C’. Since then, this has comprised an area in which four chimney sweeps are active and, for that reason, Mr Hiebler can no longer pursue his trade in that area, since the exceptional circumstances which would have allowed him to do so (occasions where delay would be dangerous and work commissioned by the public authorities) have not arisen.
17.
Mr Hiebler none the less sent out mailshots to win new customers in that area after 27 July 2011. In response to that advertising, 42 of the customers served by Mr Schlagbauer, who is established there, switched to Mr Hiebler. As a result, Mr Schlagbauer suffered a loss of earnings.
18.
Mr Schlagbauer brought proceedings against Mr Hiebler before the Landesgericht Klagenfurt (Regional Court, Klagenfurt) seeking a prohibitory injunction, publication of the judgment and EUR 2594.65 plus interest and legal costs. On 10 March 2013, the Landesgericht Klagenfurt upheld the action, holding that the territorial limitations were in conformity with Directive 2006/123, as they were non-discriminatory, necessary and proportional.
19.
An appeal having been brought before it by Mr Hiebler, the Oberlandesgericht Graz (Higher Regional Court, Graz) on 6 November 2013 confirmed that decision.
20.
The Oberster Gerichtshof (Supreme Court), hearing an appeal on a point of law (‘Revision’), by order of 20 May 2014, received at the Court on 13 June 2014, referred the following questions for a preliminary ruling:
‘(1)
In accordance with Article 2(2)(i) of Directive [2006/123], is the entire commercial activity of a chimney sweep excluded from the scope of that directive because chimney sweeps also perform tasks in the field of fire safety regulation (fire safety inspections, expert reports in the course of building approval procedures etc.)?
(2)
If Question 1 is answered in the negative: is a scheme, provided for in national law, under which the license to trade as a chimney sweep is limited to a particular “Kehrgebiet” (sweeping area) compatible with Article 10(4) and Article 15(1), (2)(a) and (3) of Directive [2006/123]?’
IV – Analysis
A – Preliminary remarks
21.
In referring mainly to Chapter III of Directive 2006/123, the Oberster Gerichtshof sees the current case as being governed by the rules on establishment rather than by those on services. This appears also to me to be the correct starting point, given that, by virtue of settled case-law, the provision of services is distinguished from establishment first and foremost by the stability and continuity of the activity in question, as opposed to an activity of a temporary nature. (
3
) In the case at issue, Mr Hiebler’s intention is that his activity of sweeping chimneys will be stable and continuous.
22.
It is therefore appropriate to examine the case at issue in the light of freedom of establishment.
23.
Furthermore, it appears that all the factors of the case at issue are confined to Austria, indeed to the Land of Carinthia. There is, in other words, no so-called cross‑border element between Member States of the European Union.
24.
As I argue in my Opinion in Trijber and Harmsen, such a cross-border element is, however, not necessary. Chapter III of Directive 2006/123 on freedom of establishment for providers should be held to also apply in purely internal situations. (
4
)
25.
This also has the consequence that there is no need to question the admissibility of the present preliminary reference and to resort to the Court’s settled case-law according to which, notwithstanding the fact that the case at issue does not in itself bear any cross-border elements, there may still be an interest in the Court replying to the question posed. (
5
)
26.
For me, therefore, Chapter III of Directive 2006/123 is applicable to the case at issue, and there is no need to examine whether any elements in that case transcend the Austrian border.
B – First question
27.
By its first question, the referring court in essence wishes to know whether the entire commercial activity of a chimney sweep is excluded from the scope of Directive 2006/123 because chimney sweeps also perform tasks in the field of fire safety regulation. The Oberster Gerichtshof specifically refers to Article 2(2)(i) of Directive 2006/123, which excludes activities connected with the exercise of official authority as set out in what is now Article 51 TFEU. (
6
)
1. On the exercise of official authority
28.
This question, however, presupposes that, in Carinthia, chimney sweeps, are, as part of their activity, engaged in the exercise of official authority.
29.
On the basis of the request of the referring court for a preliminary reference and the information provided during the hearing, the following picture emerges: in Carinthia, chimney sweeps carry out a range of activities. The vast majority of them constitute private economic activities, not in any way linked to the exercise of official authority. In addition, in so far as they are required by provisions at the federated level to carry out ‘administrative policing’ activities, in particular activities connected with fire safety regulation, building control or the like, they perform public duties. (
7
)
30.
Are such public duties connected with the exercise of official authority in the sense of Article 2(2)(i) of Directive 2006/123 and Article 51 TFEU?
31.
The concept of ‘official authority’ as set out in Article 51 TFEU, which is an autonomous one in the sense that it has to be determined exclusively by virtue of EU law and cannot be defined by each Member State, constitutes an exception to the fundamental principle of freedom of establishment which, accordingly, must receive a narrow interpretation. Even though it has not been defined by the Court in the abstract, (
8
) the Court has held that it must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority. (
9
) For instance, authentication activities entrusted to notaries do not, according to the Court, involve a direct and specific connection. (
10
)
32.
Moreover, activities which are merely auxiliary or preparatory to the exercise of official authority (
11
) are not excluded from the scope of freedom of establishment. The same is true of activities whose exercise, although involving contacts, even regular and systemic, with the administrative or judicial authorities, including even compulsory cooperation, in their functioning, leaves their discretion and decision-making powers intact (
12
) and of certain activities which do not involve the exercise of decision-making powers, (
13
) powers of constraint (
14
) or powers of coercion. (
15
)
33.
Moreover, as the Court has recently held with respect to the public policy exception in Article 45(4) TFEU, which is the provision corresponding to Article 51 TFEU in the domain of the free movement of workers, powers of a public authority must be exercised on a regular basis and must not constitute a minor part of the duties of the person exercising them. (
16
)
34.
At the hearing, it was argued that it was the local authority in the person of the mayor (‘Bürgermeister’) who was, under Carinthian law, responsible for fire safety regulation, not the chimney sweep. It was for the mayor to exercise official authority and to enforce the obligations on a chimney sweep’s customers by way of coercive measures.
35.
Against this background, I have my doubts as to whether such duties relating to fire safety fall within the scope of the exercise of official authority in the sense of Article 51 TFEU, for it appears that the chimney sweep’s activities are auxiliary to the exercise of official authority and that he does not have any power of enforcement, constraint or coercion.
36.
If none of Mr Hiebler’s activities fall under Article 2(2)(i) of Directive 2006/123, then his entire activities are subject to the directive. (
17
)
2. On services of general economic interest
37.
I shall deal with the concept of services of general economic interest in the second question. Suffice it to say at this stage that, even in the eventuality that (all) activities of chimney sweeps were considered services of general economic interest, they would still fall within the scope of the directive. Pursuant to Article 1(2) of Directive 2006/123, the liberalisation of services of general economic interest, reserved to public or private entities, does not form part of the subject-matter of the directive. The second subparagraph of Article 1(3) goes on to state that the directive ‘does not affect the freedom of Member States to define, in conformity with Community law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to’. This implies for me that, in principle, services of general economic interest do fall within the scope of Directive 2006/123, which is also confirmed by recital 17 to the directive. (
18
) In addition, it is stressed in Article 2(2)(a), the directive does not apply to non-economic services of general interest, which is superfluous, given that it is inherent in the definition of a service that it is provided for remuneration. (
19
) Moreover, some services of general economic interest, such as services in the field of transport, (
20
) are expressly excluded from the scope of the directive which means a contrario that those services of general economic interest not expressly excluded are within the scope of the directive.
38.
The answer to the first question should therefore be that activities such as those of chimney sweep in the Land of Carinthia, including those in the field of fire safety regulation, do not constitute activities connected with the exercise of official authority in the sense of Article 2(2)(i) of Directive 2006/123 and Article 51 TFEU. They fall within the scope of Directive 2006/123.
C – Second question
39.
By its second question the referring court asks the Court whether a scheme, provided for in national law, under which the license to trade as a chimney sweep is limited to a particular sweeping area is compatible with Article 10(4) and Article 15(1), (2)(a) and (3) of Directive 2006/123. In essence the question seeks to ascertain whether a restriction on freedom of establishment, resulting from a quantitative or territorial restriction, can be justified by overriding reasons relating to the public interest.
40.
Article 10(4) of Directive 2006/123 deals with the conditions to be fulfilled by a national scheme for granting authorisations, while Article 15 of the directive has as its object the compatibility with the directive of national requirements imposed on the service provider.
1. Article 14(1)(b) of Directive 2006/123
41.
Before turning to the examination of Articles 10(4) and 15, I deem it necessary to draw the Court’s attention to Article 14(1)(b).
42.
I understand Paragraph 120 of the Austrian Gewerbeordnung to imply that for the purposes of obtaining a chimney sweep licence, no distinction is made as regards the actual type of activity carried out and that, therefore, anyone desiring to obtain such a licence must be established in Austria for that purpose. Whether or not this assumption is correct is for the national court to verify. In the affirmative, however, then this would constitute a discriminatory requirement based indirectly on nationality in the sense of Article 14(1)(b) of Directive 2006/123, as it would oblige Mr Hiebler’s firm to be resident in Austria. This would be illegal per se without there being any possibility of justification. (
21
)
2. Article 10(4) of Directive 2006/123
43.
Pursuant to Article 10(4) of Directive 2006/123, a limitation of the authorisation to a certain part of the territory must be justified by an overriding reason relating to the public interest.
44.
As regards a possible justification under this provision, the Austrian Government in its written observations alludes to health protection and the protection of public safety. Obviously, given that economic reasons cannot be resorted to, the ‘economic viability of … chimney sweeping businesses’ (
22
) is certainly not a possible ground for justification. (
23
)
45.
Furthermore, the limitation must be proportionate. (
24
) It must therefore in the first place be suitable (
25
) for securing the attainment of the objective pursued.
46.
I already doubt the suitability of the Austrian legislation.
47.
Insofar as a territorial restriction is suitable to the ensuring of public safety in the form of fire safety, I wonder whether it would not be more suitable to allow chimney sweeps to provide their services in other territories, since this would contribute to a better supply to customers.
48.
It is true that in the domain of health protection the Court has found territorial restrictions for pharmacies and opticians to be proportional. In Blanco Pérez and Chao Gómez it found that legislation under which only one pharmacy may be set up in relation to a certain number of inhabitants was proportionate in view of the aim of health protection. (
26
) In Ottica New Line it extended this reasoning to opticians. (
27
)
49.
What distinguishes the present case, concerning the activities of a chimney sweep, from those cases, however, is a double element of immovability. Not only can the customers not move, as, given that chimneys are part of immovable property, is in the nature of things, but in addition, a chimney sweep is not able to move outside the territory he has been assigned.
50.
Again, I fail to see how such a requirement should contribute to an increase in fire safety or public health. Rather to the contrary, I would assume that allowing chimney sweeps to leave their territory to offer their services would actually enhance adequate supply to the customers and thereby increase fire safety and contribute to the protection of public health.
51.
Moreover, the territorial restriction clearly goes beyond what is necessary to attain the objective of fire safety, as the example of the Austrian Land of Salzburg, to which the Oberster Gerichtshof explicitly refers, demonstrates.
52.
As a consequence, the territorial restriction is an infringement of Article 10(4) of the directive.
3. Article 15(1) to (3) of Directive 2006/123
53.
As a preliminary remark, I should like to state the obvious, which is that although the provision is directed at Member States in the form of an evaluation obligation it is directly applicable and can be invoked by Mr Hiebler against the Austrian authorities.
54.
The territorial restriction in the sense of Article 15(2)(a) of Directive 2006/123 must be, by virtue of Article 15(3), non-discriminatory, justified by an overriding reason relating to the public interest (
28
) and proportionate.
55.
The analysis made of Article 10(4) in relation to the justification of a restriction applies mutatis mutandis, which is why the Austrian legislation infringes Article 15(3) too.
4. Article 15(4) of Directive 2006/123 – Services of general economic interest
56.
That assessment having been made, I still deem it appropriate to examine Article 15(4) of the directive, even if it has not been raised by the referring court or any of the parties in their written observations. (
29
)
57.
By virtue of this circular (
30
) provision, paragraphs 1 to 3 of Article 15 of the directive ‘shall apply to legislation in the field of services of general economic interest only insofar as the application of these paragraphs does not obstruct the performance, in law or in fact, of the particular task assigned to them’.
58.
I should like to proceed in two stages: first, to elaborate on the concept of a service of general economic interest and, subsequently, to examine the meaning of Article 15(4).
59.
The expression ‘services of general economic interest’ which initially stems from primary law (Article 106(2) TFEU) (
31
) has been interpreted by the Court a number of times already, even if it has not been defined in the abstract.
60.
As stated above, the referring court, in its request for a preliminary ruling, does not raise the possibility that the activities of a chimney sweep might constitute a service of general economic interest. I nevertheless deem it appropriate to explore this possibility in order to give the referring court maximum guidance as to how to resolve the case at issue in the light of EU law.
61.
While a Member State has a wide discretion when determining what it regards as a service of general economic interest, it must ensure that every service of general economic interest mission satisfies certain minimum criteria common to all such missions and demonstrate that those criteria are indeed satisfied in the particular case. (
32
) These are, notably, the presence of an act of the public authority entrusting the operators in question with a service of general economic interest mission and the universal and compulsory nature of that mission. (
33
) Furthermore, a Member State must indicate the reasons why it considers that the service in question, because of its specific nature, deserves to be characterised as a service of general economic interest and to be distinguished from other economic activities. (
34
)
62.
Advocate General Ruiz-Jarabo Colomer proposed the following definition: ‘the service should be uninterrupted (continuity); for the benefit of all consumers throughout the relevant territory (universality); at uniform tariff rates and of similar quality, irrespective of specific situations or of the degree of economic profitability of each separate transaction (equality)’. (
35
) To this, he then added transparency and affordability. (
36
)
63.
Moreover, a common reason for the State to intervene in the provision of a service of general economic interest is market failure. (
37
)
64.
On the basis of the information submitted by the national court and the clarification provided by the representative of Mr Hiebler during the hearing, I would doubt that chimney sweeps fulfil a service of general economic interest in Carinthia. Chimney sweeps may, by virtue of Article 123(3) of the Austrian Gewerbeordnung, be under an obligation to contract within their sweeping area. However, instead of a uniform tariff rate there is merely an upper limit on what chimney sweeps can charge. Below this threshold, as the referring court seems to indicate, competition – to the extent limited by the territorial restriction – flourishes.
65.
Moreover, given that neither the national court in its request for a preliminary ruling nor the Austrian Government in its written observations have raised the issue of a service of general economic interest, I do not know of any reasons why Austria would consider that the service of a chimney sweep, even when it concerns fire safety regulation, because of its specific nature, deserves to be characterised as a service of general economic interest and to be distinguished from other economic activities. (
38
)
66.
That said, again it is for the national court to establish the facts and give a ruling in light of the guidance provided above. It is not inconceivable that the factual examination of the referring court might lead it to consider that chimney sweeps perform a service of general economic interest.
67.
How is, then, the provision of Article 15(4) of Directive 2006/123 to be understood?
68.
First, a degree of clarification is provided by recital 72 to the directive, according to which ‘requirements which are necessary for the fulfilment of such tasks should not be affected by this process while, at the same time, unjustified restrictions on the freedom of establishment should be addressed’.
69.
Secondly, the Commission’s non-binding but nevertheless enlightening (
39
)‘Handbook on the implementation of the Services Directive’ (
40
) sheds more light on the matter when it states in its point 10.2.4 that ‘this means that Member States have to review but may maintain those requirements in the field of services of general economic interest that are proportionate and necessary for the fulfilment of the specific task entrusted to the service provider. This assessment has to be carried out in conformity with the case-law of the ECJ relating to services of general economic interest.’ (
41
) The case-law referred to is the Court’s judgments in Merci convenzionali Porto di Genova (
42
) and in Corbeau. (
43
)
70.
I therefore understand Article 15(4) of the directive to mean the following: it provides for a possibility of justifying what would otherwise amount to an infringement of freedom of establishment under the directive. If invoked by a Member State, Article 15(1) to (3) does not apply where its application would prevent the service of general economic interest from being capable of being carried out. The Member State has to motivate this. Since Article 15(4) constitutes an exception to the general rule, it must be construed narrowly. The burden of proof is on the Member State.
71.
Against this background – even on the assumption that we are in the presence of a service of general economic interest, which I do not believe, for the reasons given above – it is for Austria to demonstrate that the territorial restriction contained in its legislation is indispensable for the activity of chimney sweeping to be carried out, so as to provide the population with that service.
72.
That is, again, a factual assessment to be carried out by the referring court. On the basis of the information provided, however, I harbour more than serious doubts that this is the case.
73.
I therefore propose that the reply to the second question should be that (i) Article 14(1)(b) of Directive 2006/123 must be interpreted as precluding national legislation under which anyone desiring to obtain a license as chimney sweep must be resident in the Member State and (ii) Article 10(4) and Article 15(1), (2)(a) and (3) of Directive 2006/123 must be interpreted as precluding national legislation under which the license to trade as a chimney sweep is limited to a particular sweeping area.
V – Conclusion
74.
In light of all the foregoing considerations, I propose that the Court answer the question referred by the Oberster Gerichtshof (Austria) as follows:
(1)
Activities such as those of chimney sweep in the Land of Carinthia, including those in the field of fire safety regulation, do not constitute activities connected with the exercise of official authority in the sense of Article 2(2)(i) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and Article 51 TFEU. They fall within the scope of Directive 2006/123.
(2)
Article 14(1)(b) of Directive 2006/123 must be interpreted as precluding national legislation under which anyone desiring to obtain a license as chimney sweep must be resident in the Member State.
(3)
Article 10(4) and Article 15(1), (2)(a) and (3) of Directive 2006/123 must be interpreted as precluding national legislation under which the license to trade as a chimney sweep is limited to a particular sweeping area.
(
1
)   Original language: English.
(
2
)   Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36). This directive has thus far not been subject to extensive litigation and has only been held applicable by the Court in one case so far. See judgment in Rina Services and Rina (C‑593/13, EU:C:2015:399). See also Opinion of Advocate General Cruz Villalón in Rina Services and Rina (C‑593/13, EU:C:2015:159, point 1 and footnote 2).
(
3
)   See, by way of example, judgment in Gebhard (C‑55/94, EU:C:1995:411, paragraph 25 et seq.). On the distinction between freedom to provide services and the right to establishment, see also Opinion of Advocate General Cruz Villalón in Yellow Cab Verkehrsbetriebs (C‑338/09, EU:C:2010:568, points 15 to 18).
(
4
)   I refer the Court to my argument developed in points 49 to 57 of my Opinion in Trijber and Harmsen (C-340/14 and C-341/14), delivered on the same day as the present Opinion.
(
5
)   For a 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.