Opinion of Mr Advocate General Jacobs delivered on 9 June 1994. - Criminal proceedings against Johannes Gerrit Cornelis van Schaik. - Reference for a preliminary ruling: Hoge Raad - Netherlands. - Preliminary reference - Articles 5, 30, 36, 55, 62, 85 and 86 fo the EEC Treaty - Council Directive 77/142/EEC - Roadworthiness tests for motor vehicles and thier trailers - National legislation facilitating the conduct of roadworthiness tests in conjunction with the periodic servicing of motor vehicles. - Case C-55/93.



European Court reports 1994 Page I-04837



Opinion of the Advocate-General

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My Lords,

1. In the present case, the Hoge Raad (Supreme Court) of the Netherlands has referred a number of questions on the compatibility with the Treaty of national rules concerning the annual testing of motor vehicles. The Hoge Raad has referred the questions in the course of an appeal by Mr van Schaik against his conviction for driving a motor vehicle without a valid test certificate, contrary to Article 9(a)(1) of the Wegenverkeerswet (Road Traffic Law). (1)

2. Mr van Schaik does not appear to dispute that he was driving a vehicle without a valid certificate. However, he argues that the system of vehicle testing laid down in the Netherlands is contrary to Community law, invoking in particular Articles 5, 30, 62, 85 and 86 of the Treaty. He claims that, in view of that alleged incompatibility, he is entitled to drive a vehicle registered in the Netherlands which has not been tested for roadworthiness.

3. The issue arises in the following way. By Article 9(g) of the Wegenverkeerswet, the Minister for Traffic and Waterways may authorize natural or legal persons to issue test certificates for motor vehicles registered in the Netherlands. By Article 16 of the Decree on the periodical testing of vehicles and trailers of 28 April 1980, (2) authorization may be granted to persons who operate testing stations, or who operate undertakings which carry out vehicle repairs, provided that certain conditions are satisfied. It appears that those conditions can in practice only be satisfied by persons who operate undertakings established in the Netherlands. Mr van Schaik argues that, under Community law, persons established in other Member States should have an equal right to be authorized to issue test certificates for vehicles registered in the Netherlands.

4. The Hoge Raad has referred the following questions:

"(1)(a) Must Article 30 of the Treaty be interpreted as meaning that national legislation such as the vehicle testing regulations outlined [in the order for reference] can be regarded as a measure having equivalent effect within the meaning of that article, in the light of the factors mentioned at paragraph 6.9 [of the order]?

(b) Or must Article 30, on the other hand, be interpreted as meaning that national legislation such as the vehicle testing regulations does not constitute an infringement thereof, because it seeks to protect a general interest justified under EEC law, is not concerned with trade in spare parts for cars, and its restrictive effect on trade goes no further than is necessary?

(2) If Question 1(a) is answered in the affirmative:

Must Article 36 of the Treaty be interpreted as meaning that national legislation such as the vehicle testing regulations is nevertheless compatible with Article 30 of the Treaty because it is justified on the ground of the protection of public security and the health and life of humans?

(3)(a) Must Article 62 of the Treaty be interpreted as meaning that national legislation such as the vehicle testing regulations is incompatible with it since the conditions laid down for the grant of authorization under Article 9(g) of the Wegenverkeerswet may, in the sector of the provision of maintenance services, result in a loss of custom for foreign garage undertakings since in the case of Netherlands cars they are unable to grant test certificates?

(b) Or must Article 62 be interpreted, in the light of Article 55 of the Treaty, as meaning that national legislation such as the vehicle testing regulations does not constitute an infringement of that article because the conduct of tests by the authorized garages for the issue of the test certificate is to be regarded as being carried out in the exercise of the State' s public powers?

(4)(a) Must Articles 5, 85 and 86 of the Treaty be interpreted as precluding national legislation such as the vehicle testing regulations which enables garage owners established and authorized in the Netherlands to exempt customers who entrust their cars to them for servicing from the payment of the costs arising in connection with the test and the issue of the test certificate, with the result that owners of motor vehicles are encouraged to give their custom to those garage owners?

(b) Or are authorized garage businesses to be regarded under Article 90(2) of the Treaty as undertakings entrusted with the operation of services of general economic interest whose fulfilment would be impeded if they were unable to grant the abovementioned cost exemption?

(5) To what extent does it make any difference to the reply to the abovementioned questions that the adverse effect of the national legislation on intra-Community trade in goods and services and on intra-Community competition is more or less confined to border areas and manifests itself on a limited scale?

(6) To what extent does it make any difference to the reply to the abovementioned questions if the national legislation concerns solely vehicles of categories mentioned in the annex to Council Directive 77/143/EEC of 29 December 1976 on the approximation of the laws of the Member States relating to roadworthiness tests for motor vehicles and their trailers, (3) or if it also concerns other vehicles such as passenger vehicles (except taxis) and other light vehicles?"

5. What is at issue in these proceedings is the requirement that roadworthiness tests must be carried out in the Member State where the vehicle is registered. The essential questions of Community law, in my view, are the compatibility of that requirement with the Treaty provisions on the freedom to provide services and the effect of Directive 77/143. I will examine the directive first.

The provisions of Directive 77/143

6. Directive 77/143 provides for the partial harmonization of the content and frequency of roadworthiness tests on motor vehicles. Article 1 of the directive provides that:

"In each Member State, motor vehicles registered in that State and their trailers and semi-trailers shall undergo periodic roadworthiness tests in accordance with this Directive and its Annexes."

By Article 2(1):

"The categories of vehicles to be tested, the frequency of the tests and the items which must be tested are listed in Annexes I and II."

However Article 3 provides, inter alia, that Member States may increase the number of items to be tested and the frequency of the compulsory tests, and extend the periodic test requirement to other categories of vehicle.

7. By Article 4:

"Roadworthiness tests within the meaning of this Directive shall be carried out by the State or by the bodies or establishments designated and directly supervised by the State."

Article 5 provides that:

"1. Member States shall take such measures as they deem necessary to make it possible to prove that a vehicle has passed a roadworthiness test complying with at least the provisions of this Directive.

...

3. Each Member State shall, on the same basis as if it had itself issued the proof, recognize the proof issued in another Member State to the effect that a motor vehicle registered in that other State, together with its trailer or semi-trailer, have passed a roadworthiness test complying with at least the provisions of this Directive."

8. Directive 77/143 did not originally require the testing of vehicles (other than taxis or ambulances) with not more than eight passenger seats. However, Annex I of the directive was subsequently amended to include the periodic testing of such vehicles. (4) That amendment did not take effect until 1 January 1994 at the earliest, (5) and is therefore not directly relevant to the present proceedings. As we have seen, however, Article 3 provides that Member States may extend the periodic test requirement to vehicles not listed in the directive. It seems to me that that provision is relevant to these proceedings, and that it is therefore necessary to consider the effect of the directive.

9. The scheme of the directive is clear. By Article 1, the vehicles specified in Annex I must be required to undergo periodic roadworthiness tests. The tests are to be carried out in the State in which the vehicle is registered. By Article 4, testing establishments designated by a Member State must be directly supervised by that State. Although the directive lays down minimum requirements in respect of categories of vehicles tested, items covered and frequency of tests, Member States are expressly authorized to impose higher standards and to extend the requirements of the directive to other categories of vehicle. Presumably, such additional requirements may only be imposed in respect of vehicles registered in the Member State concerned.

10. It follows from those provisions that a Member State may require any motor vehicle registered in that State to undergo periodic roadworthiness tests carried out by bodies or establishments on its territory. By Article 5, the Member State concerned may specify what certificates are to be issued as proof of roadworthiness. A Member State is required to recognize a corresponding certificate issued in another Member State, but only in respect of vehicles registered in that other State.

11. It seems to me that the system of the directive is based on the premise that a Member State can exercise direct supervision only over testing establishments on its own territory. That is why a vehicle is to be tested in its State of registration. The driver of such a vehicle does not enjoy the right to have the vehicle tested in another Member State. On the other hand, test certificates issued by the Member State of registration must be recognized by the authorities of other Member States as sufficient evidence that the requirements of the directive have been met.

12. Accordingly, there seems to me to be no doubt that, by virtue of the provisions of the directive, a driver of a vehicle registered in a Member State may be required to be in possession of a valid test certificate issued in that State.

13. I would add that it is not suggested in these proceedings that the directive is invalid. Of course, if the directive were thought to give rise to an unwarranted restriction on the freedom to provide services, or on some other freedom guaranteed by the Treaty, its validity might then be in doubt. As we shall see, however, restrictions of the kind imposed by the directive are in my opinion compatible with the Treaty; thus the question of the validity of the directive does not arise.

14. I turn then to the question whether restrictions of the kind at issue are compatible with the provisions of the Treaty.

The provisions of the Treaty

15. Although the Hoge Raad has referred a number of questions on various provisions of the Treaty, it seems to me that in substance Mr van Schaik should be understood as relying upon the free movement of services guaranteed by Article 59. Thus he argues in effect that, as a result of being prevented from having his vehicle certified in another Member State, it is made more difficult for him to receive two kinds of service. In the first place, he is in practice prevented from having his vehicle tested in another Member State, since such a test would not lead to the issue of any certificate recognized by Dutch law. Secondly, he is discouraged from having his car repaired and maintained in such a Member State, since he is unable to enjoy the economy of combining a roadworthiness test with a general service of the car. He points out that, under Dutch law, no additional charge may be levied for the issue of a test certificate if it is issued by a garage which carried out a general service.

16. Mr van Schaik also invokes the principle of the free movement of goods laid down by Article 30 of the Treaty. However, although the testing and servicing of a vehicle in another Member State may lead to a supply of goods, namely the spare parts required to replace any parts found to be defective, it seems to me that such a supply must be regarded as incidental to the provision of services. The appropriate provision to consider is therefore Article 59. In any event, it is clear that similar principles would apply in either case.

17. It seems to me that a refusal to authorize testing establishments based in another Member State can indeed be regarded as a restriction on the free movement of services guaranteed by Article 59, although, as I shall suggest, such a restriction can be justified under Article 56(1) as imposed for the protection of health and public safety. Contrary to the view of the Commission, it seems to me that vehicle testing and certification is indeed a "service" within the meaning of Article 60, given that tests are normally provided for remuneration. I note that vehicle inspection is an activity covered by Council Directive 82/470/EEC, which has the aim of facilitating the freedom of establishment and the freedom to provide services in respect inter alia of certain activities incidental to transport. (6) Moreover, certifying the roadworthiness of vehicles cannot in my view be regarded as an activity connected with the exercise of official authority for the purposes of Article 55. The Court has emphasized that, as a derogation from fundamental freedoms guaranteed by the Treaty, Article 55 is to be construed narrowly. (7)

18. Moreover, even if the activity of vehicle testing and certification were not itself regarded as a service, it seems to me that the refusal to authorize garages in other Member States to carry out tests leading to a certificate would amount to an indirect restriction on the provision of services of general maintenance and repair; for those services will often be provided by the garage which carries out the test.

19. Article 59 is therefore applicable in principle. I would add that it is not excluded by Article 61(1) of the Treaty, which provides that:

"Freedom to provide services in the field of transport shall be governed by the provisions of the Title relating to transport [namely Articles 74 to 84]."

For although the harmonization of vehicle testing requirements is clearly a matter which falls within the transport provisions of the Treaty, the provision of tests need not itself be regarded as a matter excluded by Article 61(1). Thus the "services in the field of transport" which are excluded from the scope of Article 59 do not include services, such as vehicle testing (or indeed vehicle maintenance), which are incidental or ancillary to the provision of transport services proper. (8)

20. As Mr van Schaik points out, the freedom to provide services entails a corresponding freedom, on the part of the consumer, to go to another Member State in order to receive the services provided. (9) In Luisi and Carbone (10) the Court stated that:

"... the freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions, even in relation to payments ...".

In the "Museum admission charges" case, (11) the Court upheld the Commission' s submission that:

"... the freedom to provide services recognized by Article 59 of the Treaty includes the freedom for the recipients of services, including tourists, to go to another Member State in order to enjoy those services under the same conditions as nationals".

21. It seems to me that a refusal by a Member State to authorize testing establishments in another Member State (or to recognize the results of tests performed by those establishments) can be regarded as a restriction, albeit indirect, on the right to receive services. It is true that such a refusal does not in itself prevent a motorist from having his vehicle tested in another Member State. But in practice he will be discouraged from doing so, since the tests will not enable him to acquire the certificate required by law. It is clear however that the restriction will be compatible with Article 59 if it can be justified under Article 56(1) of the Treaty. It will be recalled that Article 56(1), which is extended to the services provisions of the Treaty by Article 66, provides that:

"The provisions of this Chapter ... shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health."

22. In my view the restriction in question can be justified, under Article 56(1), as a measure taken for the protection of public health, which must obviously be taken to include the prevention of road accidents. A Member State is entitled to protect the lives of its citizens by requiring vehicles registered in that State to undergo periodic roadworthiness tests. Furthermore, given the importance of that objective, and in the absence of a total harmonization of testing requirements, it seems to me that a Member State is justified in requiring such vehicles to be certified by testing establishments on its territory. For it will then be able to exercise direct supervision over the establishments concerned, and will be able to enforce penal sanctions in appropriate circumstances (for instance in the event of fraudulent certification). As we have seen, the scheme of Directive 77/143 is based on precisely those principles. (12)

23. Accordingly, a Member State is in my view entitled to refuse to authorize testing establishments in other Member States. Similarly, it is entitled to refuse to recognize test certificates issued in other Member States in respect of its own registered vehicles. It is to be noted, however, that Mr van Schaik does not rely on a certificate issued in another Member State, but simply claims the right to drive without a valid test certificate. It is clear that he enjoys no such right.

24. For the sake of completeness I will briefly discuss the relevance of the competition rules of the Treaty, which are also relied upon by Mr van Schaik. By its fourth question, the Hoge Raad asks whether Articles 5, 85 and 86 of the Treaty preclude national legislation which enables garages authorized as testing establishments to exempt customers from the payment of a fee in connection with the test. As we have seen, the relevant Netherlands legislation not only enables garages to exempt customers from the payment of such a fee, but actually requires them to do so when the test is carried out in the context of a general service of the vehicle.

25. As the Commission points out, there is no suggestion that the Netherlands legislation serves to authorize or reinforce an existing agreement or concerted practice, or to impose or facilitate such an agreement or practice. Contrary to the view put forward by Mr van Schaik, the fact that the Netherlands Government has the power to consult a committee on periodic vehicle inspection which includes among its members representatives of the garage owners provides no evidence of such a link with an agreement or concerted practice. Accordingly, even if an agreement to waive a fee could be regarded as prohibited by Article 85 ° a proposition which is in itself doubtful ° the requirement imposed by the Netherlands legislation would not amount to a breach of that Member State' s obligations under Articles 3(f), 5 and 85(1) of the Treaty. (13)

26. As far as Article 86 of the Treaty is concerned, no evidence has been put forward of any dominant position on the market for vehicle testing.

27. Finally, even if the Netherlands legislation could be shown to be contrary to the competition rules of the Treaty, it has not been explained how Mr van Schaik could rely upon such an incompatibility in order to avoid the requirement to produce a valid test certificate.

28. In any event, as we have seen, Directive 77/143 permits a Member State to impose periodic roadworthiness tests on any vehicle which is registered in that State, and requires such tests to be carried out by testing establishments on its territory which are under its direct supervision. It seems to me, therefore, that the directive provides a sufficient answer to the objections raised by Mr van Schaik.

Conclusion

29. I am accordingly of the opinion that the questions referred by the Hoge Raad should be answered as follows:

Article 3 of Council Directive 77/143/EEC must be interpreted as permitting a Member State to extend the periodic testing requirements laid down by the directive to motor vehicles, registered in that State, which are not included in a category listed in Annex I to the directive. By virtue of Articles 1 and 4, the Member State may require such tests to be carried out by bodies or establishments on its territory which it designates and directly supervises.

(*) Original language: English.

(1) - Inserted by the Law of 26 October 1978 (Staatsblad 595), as amended by the Law of 19 June 1985 (Staatsblad 375).

(2) - Staatsblad 217, as amended by the Decree of 3 December 1985 (Staatsblad 640).

(3) - OJ 1977 L 47, p. 47.

(4) - See Article 1 of Council Directive 91/328/EEC of 21 June 1991 (OJ 1991 L 178, p. 29).

(5) - See Article 7(3) of Directive 77/143, inserted by Article 1 of Directive 91/328 (cited in note 4).

(6) - See Article 2.D(a) of Council Directive 82/470/EEC of 29 June 1982 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies (ISIC Group 718) and in storage and warehousing (ISIC Group 720) (OJ 1982 L 213, p. 1).

(7) - See Case 2/74 Reyners v Belgium [1974] ECR 631, paragraphs 43 to 45 of the judgment.

(8) - See Directive 82/470, cited above in note 6.

(9) - See Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 10 of the judgment; Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 15; and, most recently, Case C-45/93 Commission v Spain ( Museum admission charges ), judgment delivered on 15 March 1994.

(10) - Cited in note 9; see paragraph 16 of the judgment.

(11) - Cited in note 9; see paragraphs 5 and 10 of the judgment.

(12) - See paragraphs 9 to 12 above.

(13) - See Case C-2/91 Meng [1993] ECR I-5751 and Case C-245/91 Ohra Schadeverzekeringen [1993] ECR I-5851.