OPINION OF ADVOCATE GENERAL

WAHL

delivered on 3 June 2015 ( )

Case C‑168/14

Grupo Itevelesa SL

Applus Iteuve Technology

Certio ITV SL

Asistencia Técnica Industrial SAE

v

OCA Inspección Técnica de Vehículos SA,

Generalidad de Cataluña

(Request for a preliminary ruling from the Tribunal Supremo (Spain))

(Directive 2006/123/EC — Services in the internal market — Directive 2009/40/EC — Roadworthiness tests for motor vehicles — Rules applicable to services in the field of transport — Freedom of establishment — Activity licensed out to private entities — Exercise of official authority — Requirements on geographic location and market share)

1. A well-functioning internal market presupposes adequate transport possibilities which, in turn, require road safety to be a top priority. Indeed, European Union policy sets a goal of reaching zero fatalities by 2050. ( )

2. Periodic roadworthiness testing of motorised vehicles (‘vehicle roadworthiness testing’ or ‘VRT’) is aimed at making road transport safer. In the case under consideration, which concerns, inter alia, the compatibility of certain Catalan rules on VRT with Union law, VRT is performed by private operators rather than public authorities. In that connection, the Tribunal Supremo (Supreme Court, Spain) requests guidance on a range of issues, namely (i) the applicability of the so-called Services Directive; ( ) (ii) the concept of ‘exercise of official authority’, and (iii) the compatibility of the Catalan VRT licensing scheme with the EU rules on freedom of movement.

3. In short, I take the view that Member States are best suited to determine whether to allow private operators to perform VRT and how to regulate that activity, provided they abide by EU law. In the case under consideration, for the reasons given below, I fear that EU law has not been respected in full.

I – Legal framework

A – EU law

1. The Services Directive

4. Pursuant to Article 2(1) of the Services Directive (‘Scope’), the directive applies to services supplied by providers established in a Member State, subject to certain exceptions laid down in Article 2(2). The directive applies neither, according to Article 2(2)(d), to ‘services in the field of transport … falling within the scope of [Title VI TFEU]’ nor, under Article 2(2)(i), to ‘activities which are connected with the exercise of official authority as set out in Article [51 TFEU]’.

5. Article 3(3) of the Services Directive (‘Relationship with other provisions of Community law’) provides that Member States are to apply the provisions of the directive in compliance with the rules on the right of establishment and the free movement of services.

2. Directive 2009/40 ( )

6. Directive 2009/40 was adopted pursuant to Article 71 EC (now Article 91 TFEU) and repealed Directive 96/96. ( )

7. Articles 1(1) and 2 of Directive 2009/40 (under the heading ‘General provisions’) provide, respectively, that motor vehicles registered in a Member State must undergo periodic roadworthiness tests in accordance with the directive. Such tests are to be carried out by the Member State, or by a public body entrusted with the task by the State, or by bodies or establishments designated and directly supervised by the State, including duly authorised private bodies.

B – Spanish law

8. In Catalonia, Articles 34 to 38 of Law No 12/2008 ( ) regulate periodic VRT. According to Article 35 of that law, the duties of operators of VRT sites are, among others, to carry out roadworthiness tests for vehicles and to prevent the use of vehicles which, once tested, are found to have safety defects which entail imminent danger. While Article 36 of that law imposes certain requirements on those operators, Article 37 concerns their licensing. These requirements are further fleshed out by Decrees No 30/2010 ( ) and No 45/2010 ( ) (‘the impugned decrees’).

9. In particular, Article 73 of Decree No 30/2010 provides that VRT sites must comply with the local plan. Moreover, Article 74 of that decree precludes any licensed undertaking (or group of undertakings ( )) from having a market share of more than 50%. ( ) In addition, Article 75 sets minimum permitted distances between VRT sites licensed to the same undertaking or group of undertakings. ( )

II – Facts, proceedings and the questions referred

10. On 5 May 2010, OCA Inspección Técnica de Vehículos SA (‘OCA’), a VRT site operator, lodged proceedings with the registrar of the Tribunal Superior de Justicia de Cataluña (High Court of Justice of Catalonia), requesting judicial review of the impugned decrees. OCA’s central claim was and is that the conditions attaching to the VRT licensing scheme infringe the Services Directive and Article 49 TFEU.

11. Four other VRT site operators, namely Grupo Itevelesa SL (‘Itevelesa’), Applus Iteuve Technology (‘Applus’), Certio ITV SL (‘Certio’), Asistencia Técnica Industrial SAE (‘ATI’), as well as the Generalidad de Cataluña (‘the Generalidad’), lodged submissions in support of the legality of the impugned decrees.

12. By judgment of 25 April 2012, the Tribunal Superior de Justicia upheld the action brought by OCA, taking the view that the licensing scheme was incompatible with Spanish legislation implementing the Services Directive. Accordingly, it annulled a number of provisions of Decree No 30/2010 as well as Decree No 45/2010 in its entirety.

13. The Generalidad did not bring an appeal against that judgment before the referring court. However, the four other VRT site operators did. On 15 January 2014, the Generalidad requested the referring court to grant it the status of defendant in the appellate proceedings. The Tribunal Supremo accepted that application on 20 January 2014.

14. The Tribunal Supremo is unsure, first, as to the interpretation of the concept of ‘services in the field of transport’. Second, that court requests guidance as to whether the VRT site operators exercise activities which are to be characterised as ‘official authority’. Lastly, the referring court questions the possibility, as such, of having recourse to a licensing scheme for VRT, as well as certain requirements under that scheme relating, in particular, to minimum distances and market share possession (‘the contested requirements’). On that basis, entertaining doubts as to the compatibility of the impugned decrees with EU law, the referring court decided to stay the proceedings and refer the following questions for a preliminary ruling:

‘(1) Does Article 2(2)[(d)] of [the Services Directive] exclude vehicle roadworthiness tests from the scope of the directive where national legislation provides that these are to be carried out by private commercial entities under the supervision of the authorities of a Member State?

(2) If the previous question is answered in the negative (and vehicle roadworthiness tests do, in principle, fall within the scope of [the Services Directive]), are the grounds for exclusion referred to in Article 2(2)(i) of the directive applicable due to the fact that the private entities providing the service are empowered, as a precautionary measure, to order that vehicles found to have safety defects such that they would represent an imminent danger if driven, should be taken off the road?

(3) If [the Services Directive] applies to vehicle roadworthiness tests, does that directive, when interpreted in conjunction with Article 2 of [Directive 2009/40] (or the equivalent provision of its predecessor, Directive 96/96/EC), mean that it is permissible to make such activities subject to prior administrative authorisation in every case? Does what is said in paragraph 26 of the judgment of the [Court] in [Commission v Portugal, C‑438/08, EU:C:2009:651] have any bearing on the reply to this question?

(4) Is it compatible with Articles 10 and 14 of [the Services Directive] or, if that directive is not applicable, Article 43 EC (now Article 49 TFEU), for national legislation to make the number of licences for roadworthiness testing centres subject to a local plan which justifies the quantitative restriction on the grounds of ensuring adequate local coverage, ensuring the quality of the service and encouraging competition between operators and, to that end, includes factors relating to economic planning?’

15. Pursuant to Article 101 of the Rules of Procedure, by letter of 28 January 2015, the Court requested the referring court to clarify certain issues relating to the applicable national legal framework before 24 February 2015. By letter dated 23 February 2015, the Tribunal Supremo provided the Court with the requested information.

16. Written submissions were lodged by OCA, Itevelesa, Applus, Certio, ATI, the Generalidad, the Spanish and Swedish Governments, and by the Commission. At the hearing held on 19 March 2015, oral argument was presented by OCA, Itevelesa, Applus, Certio, ATI, the Generalidad, the Spanish, Irish and Swedish Governments, and by the Commission.

III – Analysis

A – Question 1: The applicability of the Services Directive

17. Question 1 is described as the ‘key question’ by the Tribunal Supremo. Essentially, the Tribunal Supremo asks whether VRT is a ‘service in the field of transport’. To recall, Article 2(2)(d) of the Services Directive excludes from its scope such services which fall, instead, within the scope of (now) Title VI TFEU. This mimics the rule enshrined in Article 58(1) TFEU. ( )

18. As we will see, this issue is actually not essential for the outcome of the main proceedings. Nevertheless, given its potential significance for future cases, I will deal with it in full.

19. From the outset, it should be borne in mind that, according to the Treaties, due to the specific nature of transport, the application of the principles governing freedom to provide services must be achieved by introducing a common transport policy. ( ) Yet far from departing from the fundamental rules on free movement, the object of the rules relating to the common transport policy is to implement and complement those on freedom to provide services by means of common action. ( )

20. Title VI TFEU does not provide a definition of what constitutes a service in the field of transport. In the absence of a general definition in primary law, specific definitions can be found in secondary legislation adopted pursuant to Title VI TFEU of services which come within the ambit of those pieces of legislation.

21. Turning towards the matter under consideration, although Directive 96/96 harmonises the rules on roadworthiness tests for motor vehicles and their trailers, it ‘does not … contain any provision concerning the rules on access to vehicle inspection activities’. ( ) This is also true for Directive 2009/40. In other words, the entitlement to establish oneself as a VRT site operator — unlike the material rules applicable to the testing itself — is not harmonised by Directive 2009/40. A fortiori, nor is the provision of services offered in the course of that activity. Accordingly, if VRT falls to be characterised as a ‘service in the field of transport’ under Article 58(1) TFEU, the conclusion to be drawn would be that EU law does not, at this point in time, ensure the freedom to provide VRT services. ( )

22. Consequently, the idea as to what constitutes a ‘service in the field of transport’ ought to be interpreted with care. This is particularly so in respect of services which are only incidental, ancillary or even tangentially connected to transport. However, does that mean that one ought to adopt a decidedly narrow vision of that concept? This is an important question. I would think that, given the fact that the rules on common transport policy implement and complement those on freedom to provide services (see point 19 above), it would be problematic to go so far as to read Title VI TFEU — even when having regard to Article 58(1) TFEU — as an ‘exception’ to the rules on freedom of movement which must, accordingly, be construed restrictively. ( )

23. The majority of the parties who have lodged observations claim that VRT promotes transport safety, a policy area explicitly mentioned in Article 91(1)(c) TFEU. Those parties refer to the fact that Directives 96/96, 2009/40 and 2014/45 ( ) were adopted under Article 71 EC (or its successor). Hence, practice of the EU legislature arguably indicates that VRT is a service in the field of transport.

24. Although I am not immune to those arguments, with all due respect I would point out, first, that a line of argument based on the legal basis of a directive cannot be decisive where that directive only harmonises the content of the service in question but not the actual provision thereof (access). Second, the reasons for adopting legislative measures under Title VI TFEU are not always clear or coherent. To illustrate, whereas the rules on driving time and rest periods are adopted pursuant to Article 71 EC, ( ) those on the transport of animals are not. ( ) Both undeniably involve transport. In that light, it seems to me that the legal basis of a piece of EU legislation cannot be the sole deciding factor as to what constitutes a transport service. ( )

25. Arguably, VRT does not constitute an actual transport service, but a service which is ancillary or secondary thereto. The ancillary nature to actual transport makes the status of such services unclear. To illustrate, in Bowden and Others, ( ) the Court held, in respect of a directive governing working time which did not apply to the sector for road transport, that office staff working for a parcel delivery service fell within that sector. However given the specific nature of that case, which concerned an employment law related dispute, I do not think one can read too much into that judgment.

26. Now, Article 58(1) TFEU refers to ‘services in the field of transport’, which to me appears somewhat broader in scope than ‘transport services’. It would tend to include — within certain limits at least — services which are ancillary or secondary to transport.

27. Certain recitals in the preamble to the Services Directive shed further light on the matter. On the one hand, recital 21 — which refers to the somewhat narrower concept of ‘transport services’ — explains that they ‘includ[e] urban transport, taxis and ambulances as well as port services’ and ‘should be excluded from the scope of [the Services Directive]’. On the other, recital 33 explicitly mentions that ‘[t]he services covered by this Directive concern a wide variety of ever-changing activities, including business services such as … car rental; and travel agencies’. ( )

28. Given these elements, and lacking a clear definition in the legal texts, I believe that a ‘service in the field of transport’ must consist of or be inherently linked to the physical act of moving persons or goods from one place to another by means of a vehicle, aircraft or waterborne vessel. If the service in question does not mainly involve actual transport, then the mere fact that it can be linked in one way or another to transport does not, in itself, mean that it ought to be characterised as such. Doing so would risk giving Article 2(2)(d) of the Services Directive too wide a scope and robbing the directive of its purpose. With the risk of stating the obvious for example, apart from their location, services for general consumption typically located in a busy central railway station, such as footwear and key repair, are not linked to transport.

29. Yet this logic ought not to be misunderstood as a plea in favour of a narrow vision of the concept of ‘service in the field of transport’. Indeed, to judge from the wording of Article 91(1) TFEU, certain factors may tie a service not involving transport in itself to the field of transport, the reason being that it is essential to transport. Transport safety appears to be just such a factor, its purpose being to improve transport for all.

30. This leads me to conclude, for the reasons which follow, that VRT constitutes a service in the field of transport.

31. Indeed, VRT might admittedly not involve actual transport but only a service ancillary or indirect to actual transport. However, where a roadworthiness test shows a vehicle to present dangerous deficiencies, it may be legally impossible to use that vehicle for transport purposes. ( ) In other words, VRT appears to be a necessary prerequisite for transport. Moreover, taken as such, VRT contributes to making transport safer, to the benefit of all commuters. Accordingly, it is inherently linked to transport. By contrast, to use the example of car rental services which are arguably also ancillary to transport, a rental agreement itself is not a necessary prerequisite to transport but simply a legal method (among others) of procuring a means of transport.

32. Given this position, it matters not that VRT might also equally be likened to a certification, technical monitoring and/or testing service, in principle covered by the Services Directive. ( ) Indeed, nothing prevents a particular service from involving certification, technical monitoring and/or testing, on the one hand, and from being a ‘service in the field of transport’ on the other. In such a hybrid scenario, that service would still be excluded from the scope of the Services Directive, as Article 2(2)(d) of the Services Directive (and Article 58(1) TFEU) in my view takes precedence over Article 2(1).

33. On that basis, I take the view that the provision of VRT services comes within the scope of Title VI TFEU. Consequently, neither the freedom to provide services (Article 58(1) TFEU) nor the Services Directive (Article 2(2)(d) thereof) applies. Furthermore, as Directive 2009/40 does not harmonise the provision of VRT services, nor can it call into question the Catalan rules under consideration.

34. However, in order to provide the Tribunal Supremo with a useful answer which will enable it to determine the case before it, it is necessary to go beyond the wording of Question 1. Indeed, the fact that the freedom to provide services is not applicable under Article 58(1) TFEU does not exclude the application of Article 49 TFEU on freedom of establishment. That provision applies directly to transport. ( ) Tellingly, the referring court mentions Article 49 TFEU in the wording of Question 4.

35. As the operation of VRT sites falls within the concept of ‘establishment’, ( ) the Court ought to answer Question 1 to the effect that such activities come within the scope of Article 49 TFEU.

36. Lastly, as Applus and ATI raise a point of admissibility, it should be clear that the solution which I propose — namely to respond to the questions referred on the basis of the freedom of establishment, rather than the Services Directive — does not impact on the Court’s jurisdiction. Admittedly, the Court cannot answer requests for a preliminary ruling on the interpretation of the provisions of primary law on free movement of persons where all the elements are confined, in all relevant respects, within a single Member State. ( ) However, in certain instances the cross-border effects of a contested piece of national legislation cannot be ruled out. ( ) This is notably the case for legislation which sets up a licensing scheme, thereby limiting the number of economic operators, and attaches requirements thereto, for instance regarding geographic distance. Such cases have typically been assessed on the substance, ( ) the most convincing reason being that the legislation at issue was in fact capable of producing cross-border effects — at least this could not be ruled out. As the Catalan scheme under consideration is liable to do just that, I find accordingly that the Court’s jurisdiction to deal with the substance of the questions referred is unaffected.

B – Question 2: The ‘official authority’ exemption

37. Question 2 explores a well-trodden path concerning the exemption of activities qualifying as exercises of official authority from the free movement rules. The question is worded on the premiss that the Services Directive applies to the case under consideration. However, in light of my answer to Question 1 — and again in order to give a useful reply — I believe the Court should address this question from the perspective of Article 51(1) TFEU, inasmuch as that provision is relevant to the freedom of establishment as well.

38. In substance, the referring court wishes to know whether the fact that VRT site operators may order a vehicle, which upon failing the roadworthiness test is deemed to represent an imminent danger, to be taken off the road, means that they wield official authority within the meaning of Article 51(1) TFEU.

39. That question ought clearly to be answered in the negative.

40. It should be recalled, first, that as a derogation from the freedom of establishment, Article 51 TFEU must be interpreted strictly. ( ) Second, that exception is restricted to activities which in themselves are directly and specifically connected with the exercise of official authority. ( ) Third, the Court has remained sceptical towards arguments that genuine official authority had been delegated to private certifying bodies with the effect that Article 51 TFEU applied to them. ( )

41. Indeed, it is settled that certification decisions, which essentially only record the results of a technical test, do not fall within the scope of the exception laid down in Article 51 TFEU. Likewise, an auxiliary and preparatory role devolved on private bodies cannot be regarded as being directly and specifically connected with the exercise of official authority within the meaning of that provision. ( )

42. To illustrate, in the context of infringement proceedings brought against Portugal for failure to fulfil its obligations under Directive 96/96, the inspections carried out at private VRT centres came in two stages. In the first stage, the operator performed a technical inspection of the vehicle. In the second stage, the operator certified the vehicle or refused to do so. While the Court did not entertain the idea that the first stage amounted to an exercise of official authority, it did not rule that out in respect of the second stage, inasmuch as the operator drew the legal consequences of the technical findings. However, given the fact that the VRT site operators: (i) lacked decision-making independence, (ii) operated under State supervision as spelled out in Article 2 of Directive 96/96; and (iii) lacked any power of coercion (which remained within the remit of law enforcement agencies), Article 45 EC did not apply to that activity. ( )

43. Applus, ATI, Certio and Itevelesa all distinguish the case under consideration from Commission v Portugal, or argue that the Catalan rules under consideration are compatible with that judgment.

44. As I see it, there is no legally relevant difference between the case at hand and Commission v Portugal. An argument that VRT site operators do not have a merely preparatory role or that the administration does not supervise their activities ‘actively’, fails to convince. Indeed, Article 2 of both Directive 96/96 and Directive 2009/40 (as well as Article 4(2) of Directive 2014/45) explicitly state that where Member States choose to liberalise VRT activities, the private VRT site operators are to be ‘directly supervised by the State’. ( ) Directive 2009/40 is somewhat frugal when it comes to describing the extent of that control. ( ) However, certain of its provisions are inherently founded on the idea of supervision. ( ) Thus, the fact that VRT site operators might have to take out insurance or adopt internal audit schemes does not mean that they act independently of State supervision within the meaning of that judgment.

45. This issue has in any event been clarified by the information provided to the Court by the Tribunal Supremo. From that answer, it now emerges, first, that the owner of a vehicle which has been ordered off the roads may ultimately bring a complaint before a technical auditor — a public official charged with the supervision of VRT sites — who may quash the order. Second, under the applicable national rules, a decision to order a car off the road can only be taken ‘in the situations foreseen by the applicable legislation, in accordance with instructions and protocols approved by’ the competent authority. ( ) The applicable manual for the inspection of vehicles uses the imperative mood, which leaves little room for the exercise of discretion by VRT site operators. ( )Third, the Tribunal Supremo makes perfectly clear that although VRT sites may order a vehicle off the roads for safety reasons, the enforcement of that order is a matter for the Catalan Government or the police, which VRT sites are not entitled to do.

46. On that basis, and given the restrictive interpretation of Article 51 TFEU, I have little qualms in agreeing with the Generalidad and the Commission that the operation of VRT sites does not involve the exercise of official authority. Accordingly, I propose that the Court answer Question 2 to the effect that the possibility for private VRT site operators to order that vehicles found to have safety defects such that they would represent an imminent danger if driven, are to be taken off the road, does not amount to an exercise of official authority within the meaning of Article 51 TFEU in circumstances where national law requires the imposition of such an order as a consequence of the technical inspection and, in any event, where the application of coercive measures to remove the car is reserved for law enforcement agencies.

C – Questions 3 and 4: The licensing scheme and the conditions attaching thereto

47. By its Question 3, the Tribunal Supremo essentially asks whether it is compatible with the Services Directive, read in conjunction with Article 2 of Directive 2009/40, for Member States to have recourse to an administrative licensing system to regulate the performance of VRT services. This question has been asked given the fact that in Commission v Portugal, ( ) the Court held that access to vehicle inspection activities is not harmonised by Directive 96/96.

48. By its Question 4, the referring court specifically asks whether it is compatible with Articles 10 and 14 of the Services Directive or, in the alternative, Article 49 TFEU, for national legislation to pose certain requirements on minimum distance and market power on the grounds of ensuring adequate local coverage, increasing the quality of the service and encouraging competition between operators. Those requirements restrict the number of licences available and, as confirmed at the hearing, grant de facto territorial protection to the licence-holders.

49. I will provide a joint answer to those questions, as they are interconnected. For the reason stated above at point 37, I will address both questions from the point of view of freedom of establishment.

1. The licensing scheme as such

50. There is no doubt that Member States may have recourse to an administrative licensing scheme when regulating VRT activities.

51. As mentioned, the Court has held that Directive 96/96 does not govern access to that activity. That has not changed with the adoption of Directive 2009/40. As neither access to VRT activities nor road safety in general have been harmonised, Member States may regulate them in the manner they best see fit. ( ) Indeed, Article 2 of both directives explicitly confirms this, stating that roadworthiness tests may be carried out by bodies or establishments designated and directly supervised by the State, including duly authorised private bodies.

52. Nevertheless, when doing so, a national administrative licensing scheme must abide by Union law, in particular Article 49 TFEU.

53. Article 49 TFEU precludes restrictions on the freedom of establishment, that is to say, any national measure which is liable to hinder or render less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the Treaty. A ‘restriction’ covers measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder intra-Union trade. ( )

54. A rule which makes the establishment of a service provider from another Member State conditional upon the issue of prior authorisation falls within that category, since it is capable of hindering the exercise by that service provider of the freedom of establishment by preventing it from freely pursuing its activities through a fixed place of business. ( )

55. The Catalan licensing scheme under consideration involves a prior authorisation system, which restricts the setting-up of agencies, branches or subsidiaries — a matter specifically referred to in Article 49 TFEU. According to the Tribunal Supremo, those rules limit the number of VRT operators. Hence, the scheme is liable to hinder or render less attractive the exercise by EU nationals of their freedom to establish themselves as VRT operators and accordingly involves a restriction within the meaning of Article 49 TFEU.

56. Under the Gebhard doctrine, restrictions must fulfil four conditions in order to be compatible with EU law: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons in the public interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective. ( )

57. The Catalan licensing scheme is not discriminatory (at least not overtly), as it does not impose a restriction on the freedom of economic operators established in other Member States to create agencies or other establishments in Catalonia. ( ) Therefore, the only question that arises is whether it is justified and proportionate.

58. In that connection, the Tribunal Supremo refers to the preamble of Decree No 45/2010. ( ) Taking the preliminary view that the objective of increasing road safety cannot justify, single-handedly, the setting of the contested requirements, that court wonders whether other overriding reasons may provide sufficient justification, ( ) and whether such requirements comply with the principle of proportionality.

59. Except for OCA, the Swedish Government and — in so far as the contested requirements are concerned — the Commission, the parties appearing before the Court appear to take the view that road safety alone may justify the Catalan rules under consideration.

60. There is no doubt that road safety constitutes, in the case-law of the Court, an overriding reason of public interest. ( ) That is true also for the objectives of a high quality of service for the recipients ( ) and of undistorted competition which, ultimately, aims to protect consumers. ( ) As for the objective of ensuring appropriate coverage and territorial distribution of a particular product or service, it appears to me to be a means rather than an end in itself, inasmuch as it is the product or service at issue which must display features of vital importance. ( )

61. Now, as it can be assumed that VRT in general contributes to road safety, ( ) the Catalan licensing scheme ought first and foremost to be considered from that point of view.

62. Having said that, the assessment of the proportionality of the contested licensing scheme in relation to the objective pursued cannot be performed in abstracto, but depends on the particular conditions attaching to the scheme. ( ) And so, although the final say lies in the hands of the referring court, the Court may provide guidance in order to enable that court to give judgment. ( ) I will therefore take a closer look at the contested requirements.

2. Compatibility of the contested requirements with Article 49 TFEU

63. To begin with, I have to point out that the Court only has at its disposal a minimum of information on the situation before and after the reform which took place in Catalonia with the adoption of Law No 12/2008 and the impugned decrees. Indeed, all that transpires from scattered bits of information in the order for reference ( ) (and from the hearing) is that the Catalan VRT scheme was previously concession-based with a number of incumbents, and that the current scheme involves granting administrative licences following a tendering procedure. However, the order for reference does not describe the tendering material, the award criteria and their weighting, nor does it disclose any material data (for instance pertaining to the number of licences). This invariably affects the quality of the answer sought by the referring court and makes the general remarks made above in relation to Question 3 even more relevant. ( ) Moreover, this murkiness leaves a number of paradoxes unexplained.

64. A first paradox is the idea that road safety is somehow better served by imposing licensing requirements, including a minimum distance between VRT sites. Such requirements would rather limit access to VRT sites and therefore run counter to the objective of road safety. A second paradox is that, given the remarks made below, central planning is somehow preferred over open market conditions when it comes to regulating an economic activity such as VRT. A third paradox is that the requirements are supposedly designed to facilitate user access to VRT and thus to encourage and increase owner compliance therewith. However, ensuring compliance — in other words, enforcing the applicable rules — is not a matter for owners but rather the authorities. Resolving that problem, for which the authorities are solely responsible, by restricting access to VRT activities seems counter-intuitive.

65. Now, taking a closer look, first, at the distance requirement, the matter under consideration appears to be rather different from the cases where the Court has held minimum distance requirements to be compatible with the freedom of establishment. As mentioned above at point 60, the Court seems to have validated minimum distance requirements only where they ensure access to a product or service which displays features of vital importance.

66. To use Venturini ( ) as an example, in that case the Court allowed a rule according to which only pharmacies established along the ‘national grid’ (which laid down a minimum distance requirement between them) had the right to sell prescription medicinal products, including those that were non-reimbursable. Were that not to have been the case, foreseeably pharmacies might not have wished to establish themselves in remote areas along the grid, owing to intense competition for a share of the lucrative market for non-reimbursable prescription medicinal products from pharmacies and para-pharmacies not established along the grid. That might, in turn, have caused a gap in access to the not-so-profitable market for reimbursable prescription medicinal products. In other words, that case involved a market failure in respect of a more vital market which could — at least in part — be remedied by way of regulation.

67. By contrast, in the matter under consideration, consumption of the services generated by VRT activities is, by law, mandatory (if indeed the vehicle is intended to remain in use) and recurrent. ( ) This means that demand can easily be calculated by VRT site operators without State intervention. It may even be profitable in isolated or sparsely inhabited areas — provided the catchment area is large enough. There is therefore no indication of a market failure. In fact, no solid information has been given to the Court to suggest that, absent such a distance requirement, no operator would choose to locate itself in such an area. This finds support in the fact that, as stated at the hearing, the Catalan authorities cannot force VRT site operators to establish themselves in sparsely populated areas.

68. On the other hand, I would not rule out that a distance requirement might, on occasion, broaden the area of user access to VRT sites and increase the possibility of compliance. In that sense it might, at least partly, serve the purpose of increasing road safety. However, since VRT site operators cannot be required to establish themselves in the less lucrative zones, I doubt that a distance requirement will guarantee significant positive effects. At any rate, no reliable information on this issue has been provided.

69. At the hearing, the Generalidad gave the example of a local administrative division (‘comarca’) that formerly had only one VRT site at its disposal. A further licence was then awarded to a second operator following a tendering process, thus leading to a better VRT compliance rate for that comarca. However laudable that might be, why might it be better to replace a market with many regulatory flaws with one with fewer flaws? Given the aforementioned characteristics of VRT, I fail to see how doing without such planning altogether — that is to say, opting for a market with unrestricted access — might not have achieved the same purpose, but in a less onerous way.

70. Therefore, notwithstanding the wide margin of discretion which Member States enjoy as to whether a measure goes beyond what is strictly necessary in order to ensure road safety, ( ) I confess to having doubts as to whether a minimum distance requirement such as the one under consideration is at all suitable to achieve that objective. In that regard, I would call to mind that national planning rules are appropriate for securing attainment of the objective sought only if they genuinely reflect a concern to attain that objective in a consistent and systematic manner. ( ) However, given the lack of information mentioned above at point 63, I do not think that the Court is in a position to give judgment on this matter. It seems to me that the referring court is better placed to rule upon the proportionality of this licensing requirement, taking due account of the way in which the VRT site operators are selected in practice.

71. However, turning now towards the 50% market share ceiling, that requirement supposedly aims to discourage the excessive concentration of VRT services on offer, as that might risk causing the deterioration of the quality of VRT services, given its compulsory nature — or so the argument goes.

72. OCA and the Swedish Government claim that the requirement relating to market share possession pursues a purely economic objective which cannot, according to settled case-law, constitute an overriding reason in the public interest. ( ) The referring court and OCA point here to a report issued by the Autoridad catalane de la Competencia ( ) (the Catalan Competition Authority), according to which the legislation under consideration arguably entails unjustified barriers to entry for new market operators.

73. To be frank, I cannot see how a market share ceiling promotes road safety. The link between the two is simply missing. The real question instead appears to be whether the market share ceiling genuinely aims to ensure a high level of quality of service for the customers and consumers — which constitutes an overriding reason (see point 60 above) — or is rather economically motivated by protecting smaller traders from large-scale acquisitions. Recent case-law shows that the Court is, rightly, wary of Member States interfering with the freedom of establishment by regulating in detail a given market structure or competitive situation, inter alia under the pretext of ensuring a high quality of service for customers and consumers. ( )

74. In Commission v Spain, rules which applied ceilings as regards market share and impact on existing trade, above which it was impossible to open large and/or medium-sized retail establishments, were neither justified to ensure environmental protection nor planning purposes, nor consumer protection, but pursued purely economic considerations. ( ) In Attanasio Group, the Court censored a distance requirement applicable to new service stations which hindered the market access of new operators and did not provide any (shown) benefits for consumers. ( ) Lastly, in Commission v Portugal, the Court struck down, inter alia, a minimum share capital requirement of EUR 100 000 for the setting-up of a VRT business. ( )

75. Even assuming that the measure in question does ensure a high quality of service for customers and consumers, it must be pointed out that the content of the VRT procedure — that is to say, the basic service which customers and consumers purchase — is harmonised at EU level. ( ) Subject to the variations permitted by Directive 2009/40 itself, customers and consumers are entitled to expect the same high level of quality, regardless of the VRT site in question. ( ) It can, therefore, be likened to an obligation to produce a specific result (‘obligation de résultat’). Hence, in the event that certain VRT site operators lower the quality of their services, this ought to be addressed ex post by the State in the context of its supervisory role. However an ex ante maximum market share requirement of the sort presupposes, in fact, that operators above that ceiling do not provide a service which lives up to the directive. That is untenable.

76. As for the elements surrounding the basic VRT service which may be subject to qualitative modulation, such as waiting times, that is an issue worthy of consideration. ( ) However, Member States do not retain the same margin of discretion referred to above in point 70 in respect of restrictions aimed at providing a high quality of service for customers and consumers. Case-law in fact suggests that the justification must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure, as well as by actual evidence. ( ) Besides, delays or other adjacent qualitative deficiencies ought to be dealt with ex post under specific licensing conditions for areas with bottle-necks, instead of imposing a rather inexplicable market share ceiling across the board. ( )

77. Thus, I find that the market share ceiling infringes Article 49 TFEU.

78. On that basis, I propose that Court answer Questions 3 and 4 to the effect that it is for the referring court to determine, under Article 49 TFEU, whether a statutory licensing scheme such as the one described in the main proceedings regulating access to the activity as a VRT site operator is suitable to achieve the objective of road safety and does not go beyond what is necessary. However, that provision precludes a statutory licensing requirement which sets a specific limit on the market share which private vehicle roadworthiness testing site operators may retain.

3. Final consideration

79. Lastly, in the event that the Court disagrees with me on the issue as to whether VRT services are to be characterised as ‘services in the field of transport’ and, by the same token, the issue of the applicability of the Services Directive, ( ) in my view, that would not affect the outcome of the present proceedings in any appreciable way.

80. It is not necessary to engage in a debate on the extent of the harmonisation which the Services Directive entails. ( ) Suffice it to say that, under Article 1(3) thereof, national licensing requirements which go beyond what is permitted under Article 49 TFEU — as suggested above — cannot escape censure under the pretext that they comply with that directive. Moreover, for the same reasons as given above, the official authority exception set out in Article 2(2)(i) of the directive would not be applicable either.

81. Accordingly, for such an eventuality I would propose that the Court should rule, as regards the remainder, in the same manner as indicated above at points 50 to 78.

IV – Conclusion

82. In the light of the foregoing considerations, I propose that the Court answer the questions referred in Case C‑168/14 by the Tribunal Supremo as follows:

– Neither Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, nor Article 56 TFEU applies to the provision of vehicle roadworthiness testing services. However, vehicle roadworthiness testing activities fall within the scope of Article 49 TFEU.

– The possibility for private vehicle roadworthiness testing site operators to order that vehicles found to have safety defects such that they would represent an imminent danger if driven, should be taken off the road, does not amount to an exercise of official authority within the meaning of Article 51 TFEU in circumstances where national law requires the imposition of such an order as a consequence of the technical inspection and, in any event, where the application of coercive measures for the removal of the vehicle is reserved for law enforcement agencies.

– It is for the national court to determine, under Article 49 TFEU, whether a statutory licensing scheme such as the one described in the main proceedings regulating access to the activity as vehicle roadworthiness testing site operator is suitable to achieve the objective of road safety and does not go beyond what is necessary. However, that provision precludes a statutory licensing requirement which sets a specific limit on the market share which private vehicle roadworthiness testing site operators may retain.