EN Official Journal of the European Union C 79/12

Action brought on 21 December 2007 — Commission of the European Communities v Republic of Austria

(Case C-564/07)

(2008/C 79/22)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and H. Krämer, acting as Agents)

Defendant: Republic of Austria

Form of order sought

— declare that the Republic of Austria has infringed its obligations under Article 49 EC, by — requiring all patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria to first enrol in the special Austrian registers, insofar as registration is conditional on taking out professional liability insurance, — making patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria subject to disciplinary supervision by the Austrian authorities, even as regards sanctions for conduct other than the serious breach of professional duties, — making any provision of service by a patent lawyer lawfully established in another Member State wishing to provide services temporarily in Austria conditional on taking out professional liability insurance, — requiring patent lawyers lawfully established in another Member State temporarily wishing to provide services temporarily in Austria to instruct a locally registered domestic lawyer or to appoint a person residing in Austria as process agent.

— order Austria to pay the costs.

Pleas in law and main arguments

According to consistent case-law of the Court of Justice, Article 49 EC requires not only the elimination of any kind of discrimination on the grounds of nationality against a service provider established in another Member State, but also the removal of all restrictions — even if they apply uniformly to domestic service providers and service providers who are nationals of other Member States — which are liable to prohibit, impede or render less attractive the activities of service providers established in another Member State in which they legally provide equivalent services.

According to the Commission, the Austrian legal provisions regarding patent lawyers represent a restriction on the freedom to provide services within the meaning of Article 49 EC, by requiring patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria to take out professional liability insurance, to enrol in the Austrian register, to submit to the disciplinary supervision of the Austrian Patent Lawyers Association and, if they wish to represent clients, to instruct a locally registered domestic lawyer.

Those requirements are liable to impede the temporary provision of services in Austria by a patent lawyer lawfully established in another Member State, or at least to render the provision of such services less attractive. That is to say that compliance with the legal provisions of both the Member State of establishment and the Member State in which the service is provided places an additional financial burden on the service provider, since he has to familiarise himself with the provisions applicable in the Member State in which the service is provided; in addition, he is subject to two regulatory systems, without the Member State in which the service is provided taking into consideration the rules to which he is already subject in the Member State of origin. Moreover, the rules in issue are also likely to discourage consumers from enlisting the services of a service provider established in another Member State, as this generates additional costs that are not incurred if the service provider is Austrian.

National provisions that prohibit, impede or render less attractive the exercise of the fundamental freedoms guaranteed by the Treaty are compatible with the Treaty only if, first, they are justified by imperative requirements in the public interest, second, they are applied without discrimination, third, they are suitable for achieving the objective which they pursue, and, fourth, they do not go beyond what is strictly necessary to attain that objective. The recognition of interests as imperative requirements in the public interest is limited to those interests that are not already protected by provisions to which the service provider is subject in his Member State of establishment.

The Commission is of the view that the restrictions in dispute are not allowed as a derogation expressly provided for by the Treaty or justified, in accordance with the case-law of the Court of Justice, by overriding reasons relating to the public interest. The requirements in question to which patent lawyers established in other Member States are subject go beyond that which is necessary to achieve the objectives of consumer protection and the proper conduct of proceedings.