Case C‑293/14

Gebhart Hiebler

v

Walter Schlagbauer

(Request for a preliminary ruling from the Oberster Gerichtshof)

‛Reference for a preliminary ruling — Directive 2006/123/EC — Scope ratione materiae — Activities which are connected with the exercise of official authority — The trade of chimney sweep — Fire safety regulation tasks — Territorial restriction of the licence to trade — Service of general economic interest — Necessity — Proportionality’

Summary — Judgment of the Court (First Chamber), 23 December 2015

Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Requirements to be evaluated — National legislation restricting the authorisation to pursue the trade of chimney sweep to a particular geographical area — Lawfulness — Conditions — Tasks connected with fire safety regulation classified as tasks connected with services of general economic interest — Territorial restriction necessary and proportional to the performance of those tasks under economically viable conditions — Verification by the national court

Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Authorisation scheme — Conditions for granting authorisation — National legislation restricting the authorisation to pursue the trade of chimney sweep to a particular geographical area — Not permissible — Conditions — Verification by the national court

Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Scope — Trade of chimney sweep involving the performance of not only private economic activities but also of tasks connected with fire safety regulation — Included

Directive 2006/123 on services in the internal market must be interpreted as covering, in all respects, the pursuit of the trade of chimney sweep, even though that trade entails the performance not only of private economic activities but also of fire safety regulation tasks. Fire safety regulation tasks are activities auxiliary to the exercise of official authority because they are, in essence, delegated to chimney sweeps by the mayor of each municipality and are carried out under the mayor’s direct supervision without the chimney sweeps having any personal power of enforcement, constraint or coercion vis-à-vis their customers. That finding is confirmed by the fact that chimney sweeps are under an obligation when carrying out those tasks to report to the municipality any defects which have not been remedied if there is an imminent risk of fire or if the conduct of the inspection is obstructed. It follows that the fire safety regulation tasks performed by chimney sweeps are not, as such, connected with the exercise of official authority within the meaning of Article 2(2)(i) of Directive 2006/123 and are not therefore activities which, pursuant to that provision, fall outside the scope of the directive. (see paras. 38, 39, 47, operative part1)

Articles 10(4) and 15(1), (2)(a) and (3) of Directive 2006/123 on services in the internal market must be interpreted as precluding national legislation which limits, in all respects, a license to trade as a chimney sweep to a particular geographical area, if that legislation does not seek to attain, in a consistent and systematic manner, the objective of public health protection, which is a matter to be determined by the national court. Articles 10(4) and 15(3) of Directive 2006/123 both provide for the possibility of justifying a restriction on freedom of establishment, such as the territorial restriction described above, and require, for that purpose, compliance with the same conditions, designed to ensure that the restriction (i) does not discriminate on grounds of nationality, (ii) is justified by an overriding reason relating to the public interest and (iii) is suitable for securing the attainment of the objective pursued, does not go beyond what is necessary to attain that objective and may not be replaced by other, less restrictive measures which attain the same result. In the present case, the territorial restriction at issue applies without discrimination on grounds of nationality and the requirement that the restriction should be necessary is fulfilled as public health protection is one of the overriding reasons relating to the public interest that may justify restrictions on freedom of establishment. Moreover, such a restriction may provide for a balanced distribution of chimney sweeps throughout national territory, ensure that all the population has suitable access to chimney sweeping services and thus ensure adequate public health protection. Nonetheless, while it is apparent from the above that such legislation is generally capable of attaining the objective of public health protection, it is also essential that that legislation pursues that objective consistently. Although the territorial restriction in question is directed at the pursuit of trade as a chimney sweep taken as a whole, the only criterion for delimitation by geographical area imposed by national legislation is the criterion relating to the minimum number of chimney sweeps whose economic viability within each area must be guaranteed in order to ensure that fire safety regulation tasks may be performed satisfactorily, no account being taken of private economic activities which, moreover, form the most substantial part of a chimney sweep’s work. (see paras 55, 56, 58, 64, 65, 68, 79, operative part 2)