In particular, the check of the technical and financial capacity of the undertakings subject to certification, the veracity and content of the declarations, certificates and documents presented by the persons to whom the certificate is issued and compliance with the conditions relating to the personal situation of the candidate or tenderer, cannot be regarded as an activity that enjoys the decision-making autonomy inherent in the exercise of public authority powers, since that check is regulated entirely by national legislation. Furthermore, such a check is carried out under direct State supervision and is designed to facilitate the task of the contracting authorities in the field of public works contracts, its purpose being to allow those authorities to complete their tasks with precise and detailed knowledge of both the technical and financial capacity of the tenderers.

In the light of the fact that those companies are commercial undertakings performing their activities in conditions of competition and do not have any power to make decisions connected with the exercise of public powers, those companies' certification activities are not directly and specifically connected with the exercise of official authority within the meaning of Article 51 TFEU.

The first paragraph of Article 51 TFEU must be interpreted as meaning that the exception to the right of establishment laid down in that provision does not apply to the certification activities carried out by companies classified as certification bodies.

Article 14 of Directive 2006/123 on services in the internal market must be interpreted as precluding legislation of a Member State which provides that companies classified as certification bodies must have their registered office in national territory.

That article prohibits Member States from making access to, or the exercise of, a service activity in their territory subject to compliance with any of the requirements listed in paragraphs 1 to 8 of that provision, requiring that those requirements be removed, systematically and as a matter of priority. Those requirements cannot be justified. Accordingly, as stated in the title of that article, the requirements in paragraphs 1 to 8 are ‘prohibited’. Furthermore, there is nothing in the wording of that article to indicate that Member States have the option of justifying maintaining those requirements in their national legislation. Moreover, the general scheme of Directive 2006/123 is based, with regard to freedom of establishment, on a clear distinction between prohibited requirements and those subject to evaluation. While the former are governed by Article 14 of that directive, the latter are subject to the rules laid down in Article 15.

Moreover, an interpretation of Article 3(3) of Directive 2006/123 to the effect that Member States may justify, on the basis of primary law, a requirement prohibited by Article 14 of that directive would deprive that provision of any practical effect by ultimately undermining the ad hoc harmonisation intended by that directive. Furthermore, Article 3(3) of Directive 2006/123 does not prevent Article 14 of that directive from being interpreted as meaning that there can be no justification for the prohibited requirements listed in Article 14. That prohibition, with no possibility of justification, seeks to ensure the systematic and swift removal of certain restrictions on freedom of establishment, regarded by the EU legislature and the case-law of the Court as adversely affecting the proper functioning of the internal market. That aim is consistent with the Treaty.

Accordingly, even though Article 52(1) TFEU allows Member States to justify, on any of the grounds listed in that provision, national measures constituting a restriction on the freedom of establishment, that does not prevent the EU legislature, when adopting secondary legislation, such as Directive 2006/213, giving effect to a fundamental freedom enshrined in the FEU Treaty, from restricting certain derogations, especially when, as in the present case, the relevant provision of secondary law merely reiterates settled case-law to the effect that a requirement such as that at issue in the main proceedings is incompatible with the fundamental freedoms on which economic operators can rely.

(see paras 26, 28, 30, 31, 37, 39-41, operative part 2)