OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 16 November 2011 ( 1 )

Case C-357/10

Duomo Gpa Srl

v

Comune di Baranzate

Case C-358/10

Gestione Servizi Pubblici Srl

v

Comune di Baranzate

Case C-359/10

Irtel Srl

v

Comune di Venegono Inferiore

(References for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy))

‛Services in the internal market — Freedom of establishment — Freedom to provide services — Service concession relating to the assessment and collection of taxes — National legislation requiring concessionaire undertakings to have a minimum share capital — Applicability of Directive 2006/123 — Articles 15 and 16 of Directive 2006/123 — Proportionality’

I – Introduction

1. These three joined cases concern the compatibility with European Union law of a provision of national law by virtue of which undertakings seeking to be awarded services relating to the assessment and collection of taxes and other local authority revenue must have a fully paid-up share capital of at least EUR 10000000, failing which they will, essentially, be excluded from the relevant award procedure or, as the case may be, the award will be declared null and void.

2. More specifically, the referring court asks whether that provision of national law is compatible with Articles 15 and 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ( 2 ) on the one hand, and with primary law on the other.

3. The incorporation of the Directive into European Union law has raised various questions: firstly in relation to its nature as a harmonising measure, ( 3 ) but also in relation to its applicability to purely domestic cases ( 4 ) and in relation to the scope and validity of Article 16, ( 5 ) inter alia. It is not necessary in this case, however, to address all, or even most, of these issues. Specifically, when considering the hypothesis that this is a case of a supply of services to which the freedom of establishment is not applicable, I will be suggesting that on this occasion the Court of Justice dispense with the need to cover all these points and move directly to assessing the compatibility with European Union law of the provision of national law in question from the viewpoint of the principle of proportionality.

II – Legal framework

A – European Union law: Directive 2006/123

4. Directive 2006/123, known as the Services Directive, establishes ‘provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services’ (Article 1(1)).

5. Chapter III concerns freedom of establishment for providers. Article 15(2) provides that ‘Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance’ with a number of requirements, including ‘requirements which relate to the shareholding of a company’ (Article 15(2)(c)).

6. Article 15(3) provides as follows: ‘Member States shall verify that requirements referred to in paragraph 2 satisfy the following conditions: (a) non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality nor, with regard to companies, according to the location of the registered office; (b) necessity: requirements must be justified by an overriding reason relating to the public interest; (c) proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result’.

7. Chapter IV of the Directive concerns free movement of services. Article 16, entitled ‘freedom to provide services’, falls within it and provides as follows: ‘Member States shall respect the right of providers to provide services in a Member State other than that in which they are established. The Member State in which the service is provided shall ensure free access to and free exercise of a service activity within its territory. Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles: (a) non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; (b) necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; (c) proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective’.

B – Italian legislation

8. Article 32(7a) of Legislative Decree No 185 of 29 November 2008, ( 6 ) converted by Law No 2 of 28 January 2009, ( 7 ) provided as follows: ‘The minimum amount of fully paid-up share capital required of companies, for the purpose of Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended, for entry in the appropriate register of undertakings authorised to carry out activities relating to the assessment and collection of taxes and other revenue of provinces and municipalities shall be fixed at an amount of no less than EUR 10000000. Companies in which a majority of the share capital is in public ownership shall be excluded from the limit referred to in the previous sentence. The award of services relating to the assessment and collection of taxes and other local government revenue to undertakings which fail to satisfy that financial requirement shall be null and void. Undertakings entered in the abovementioned register shall be required to bring their share capital up to the aforesaid minimum level. In any event, until they have done so, they may not be awarded new contracts or participate in tendering procedures initiated for that purpose.’

9. That provision was repealed by Article 3a(3) of Legislative Decree No 40 of 25 March 2010, ( 8 ) converted by Law No 73 of 22 May 2010. ( 9 ) The new legislation requires different minimum levels of share capital depending on the number of inhabitants of the local authority in question.

III – The disputes in the main proceedings and the questions referred for a preliminary ruling

10. Cases C-357/10 and C-358/10 arise out of the announcement by the Comune di Baranzate (Municipality of Baranzate) (Italy) of an open procedure for the award of a service concession relating to the administration, assessment and collection of certain taxes and other local revenue for the five-year period between 1 May 2009 and 30 April 2014. The estimated value of the services for the whole period was EUR 57000. Six private undertakings, all established in Italy, submitted tenders. They included Duomo Gpa Srl (‘Duomo’), Gestione Servizi Pubblici Srl (‘GSP’) and Agencia Italiana per le Pubbliche Amministrazioni SpA (‘AIPA’). On 1 and 3 April 2009 the Comune di Baranzate informed Duomo and GSP that they had been excluded from the procedure due to their failure to meet the requirement specified in Article 32(7a) of Legislative Decree No 185/08.

11. Case C-359/10 arises out of the announcement by the Comune di Venegono Inferiore of a similar procedure. This case concerned the award of a service concession relating to the assessment, collection and enforcement of local taxes on advertising and charges for public advertising displays for the four-year period from 23 February 2009 to 31 December 2012, worth an estimated EUR 48 765 in total. Irtel SpA (‘Irtel’) and AIPA were among the undertakings submitting tenders. On 9 March 2009, the contracting authority decided to exclude Irtel from the procedure due to its failure to meet the requirement specified in Article 32(7a) of Legislative Decree No 185/08.

12. Duomo, GSP and Irtel each commenced proceedings in respect of the decisions to exclude them from the award procedures.

13. The Tribunale Amministrativo Regionale per la Lombardia (Regional Administrative Court, Lombardy) (Italy) has stayed the relevant proceedings and referred the following questions for a preliminary ruling in relation to each of the actions: ‘(A) Does the correct application of Articles 15 and 16 of Directive 2006/123/EC preclude the provisions of national law laid down in Article 32(7a) of Legislative Decree No 185 of 29 November 2008, added by Converting Law No 2 of 28 January 2009 and subsequently amended by Law No 14 of 27 February 2009, under which: — the award of services relating to the assessment and collection of taxes and other local authority revenue to persons who fail to satisfy the minimum financial requirement of fully paid-up share capital in the sum of EUR 10000000 is to be null and void; — persons entered in the relevant register of private persons authorised to carry out activities relating to the assessment and collection of taxes and other revenue of the provinces and municipalities are required to bring their share capital up to the minimum figure in question, pursuant to Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended; — it is prohibited to acquire new contracts or participate in tender procedures for the operation of services relating to the assessment and collection of taxes and other local authority revenue until the abovementioned requirement to adjust share capital has been met; and companies in which all or a majority of the share capital is in public ownership are excluded from those provisions? (B) Does the correct application of Articles 3, 10, 43, 49 and 81 of the Treaty establishing the European Community preclude the provisions of national law laid down in Article 32(7a) of Legislative Decree No 185 of 29 November 2008 added by Converting Law No 2 of 28 January 2009 and subsequently amended by Law No 14 of 27 February 2009, under which: — the award of services relating to the assessment and collection of taxes and other local authority revenue to persons who fail to satisfy the minimum financial requirement of fully paid-up share capital in the sum of EUR 10000000 is to be null and void; — persons entered in the relevant register of private persons authorised to carry out activities relating to the assessment and collection of taxes and other revenue of the provinces and municipalities are required to bring their share capital up to the minimum figure in question, pursuant to Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended; — it is prohibited to acquire new contracts or participate in tender procedures for the operation of services relating to the assessment and collection of taxes and other local authority revenue until the abovementioned requirement to adjust share capital has been met; and companies in which all or a majority of the share capital is in public ownership are excluded from those provisions?’

IV – Procedure before the Court of Justice

14. The references for preliminary rulings were lodged at the Registry of the Court of Justice on 19 July 2010.

15. Written observations have been submitted by the Comune di Baranzate, the Italian and Netherlands Governments and the Commission.

V – Analysis of the questions referred for a preliminary ruling

16. As I have already indicated, the two questions raised in these references concern the compatibility of a provision of national law, first with the freedom of establishment and the freedom to provide services according to the Services Directive, and, second, with those freedoms as they appear in the Treaty itself.

17. Although the second question is not formally presented as subsidiary to the first, it seems reasonable to assume that it is the prospect of potential difficulties relating to the applicability of the Directive to these cases that has led the referring court to seek, in the alternative, an examination of the provision of national law by comparison with these freedoms as they appear in the Treaty itself.

A – The first question referred for a preliminary ruling

18. The first question referred relates to the compatibility with Articles 15 and 16 of the Services Directive of the Italian legislation previously referred to, by virtue of which undertakings seeking to be awarded services relating to the assessment and collection of taxes and other local authority revenue must have a fully paid-up share capital of at least EUR 10000000, failing which they will be excluded from the relevant award procedure or, as the case may be, the award will be declared null and void.

19. Those articles of the Directive are respectively part of the differing sets of provisions governing each of the two possible ‘situations’ which may apply to the service provider: that of ‘freedom of establishment’ and that of ‘freedom to provide services’, which are each subject to somewhat different legal regulation. ( 10 ) However, before turning my attention to the question of whether one or other, or even both, articles should be seen as relevant for the present purposes, I cannot avoid addressing the issue of the applicability as such of the Directive.

1. Applicability of the Services Directive

20. The applicability of the Services Directive has been called into question essentially from two different points of view: the temporal and the substantive.

a) Temporal arguments: a provision of national law adopted during the transposition period

21. Both the adoption of the disputed provision of national law and the commencement of the award procedure, together with the decisions to exclude the applicant undertakings, took place prior to 28 December 2009, which was the date on which the period laid down for transposition of the Services Directive ended (Article 44(1)).

22. However, this is not relevant from a freedom of establishment perspective, since Article 15(6) of the Directive provides that ‘[f]rom 28 December 2006 Member States shall not introduce any new requirement of a kind listed in paragraph 2, unless that requirement satisfies the conditions laid down in paragraph 3’. Consequently, the disputed condition, which was introduced after that date, must be evaluated in relation to Article 15 of the Directive.

23. In the case of the provisions on freedom to provide services, the Directive does not contain an equivalent standstill clause, but notwithstanding this, the foregoing conclusion also applies here. By virtue of the Inter-Environnement Wallonie case, ( 11 ) and the Société fiduciaire nationale d’expertise comptable case, ( 12 ) during the period specified for transposition, the Member States must refrain from taking any measures ‘liable seriously to compromise the attainment of the result prescribed’ by a directive.

24. It should also be borne in mind that in this case the provision of national law does not seem to have been adopted with the intention that it should be provisional (in fact, it was adopted only a year before the end of the period prescribed for transposition of the Directive). ( 13 ) The fact that the disputed provision was only in force for a short period of time is not, therefore, a sufficient basis for concluding that it was merely a ‘stage’ in the transposition of the Directive, ( 14 ) or for holding that it was not liable ‘seriously to compromise the attainment of the result prescribed’ by the Directive: a close examination of the wording of the two judgments cited above shows that the decisive factor is not that the measure ultimately compromised the attainment of the result of the Directive, but that it could have done so (had it remained in force).

b) Substantive arguments: cases ‘excluded’ from the scope of the Services Directive

25. As the Commission correctly notes, in Italy, the assessment and collection of taxes and other local authority revenue constitutes a ‘service’ within the meaning of Article 4(1) of the Directive and therefore falls within its scope (Article 2(1)).

26. However, there are also several substantive arguments against the applicability of the Services Directive, which rely on various exceptions to its scope. As exceptions, these derogations must be interpreted strictly and, in any event, without relying on analogy. Of those put forward in this case, none appear to me to be relevant.

27. First of all, it should be pointed out that, despite its obvious connection with tax-raising powers, the assessment and collection of taxes involved here cannot be viewed as an activity which is excluded from the scope of the Directive as being ‘connected with the exercise of official authority’ within the meaning of Article 51 TFEU (Article 2(2)(i) of the Services Directive). There is extensive case-law to the effect that the exception referred to in that article of the Treaty does not extend to functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision. The Court of Justice has also clarified that Article 51 TFEU cannot be relied on where private bodies exercise the powers of a public authority ‘under the active supervision of the competent public authority’. ( 15 ) Italian law clearly reserves the exercise of tax-raising powers as such to public bodies and takes the view that the collection of certain taxes is an auxiliary activity which can be carried out through a system of indirect management under the supervision of public bodies and therefore falls within the scope of the Directive.

28. Neither can the situation under consideration here be excluded from the scope of the Services Directive by virtue of Article 2(3), which provides that the Directive does not apply to ‘the field of taxation’. As is apparent from recital 29 in the preamble, that derogation seeks to make the Directive inapplicable to fiscal measures adopted by the Member States, which are governed by specific provisions of the Treaty. Conversely, administrative activities in ‘the field of taxation’, such as those in the present case, are included in the scope of the Directive, as is fiscal advice, which is specifically mentioned in recital 33 in the preamble to the Directive.

29. Finally, the exception referred to in Article 17(5) of the Directive, by virtue of which Article 16 is not to apply to ‘the activity of judicial recovery of debts’, does not appear to be relevant here either, as the activity is carried out without the involvement of the judicial authorities.

30. In the light of the foregoing, we can therefore conclude that the Services Directive is applicable to the present case.

2. The freedoms in question: two possible situations of the service provider

31. The provision of national law at issue clearly contains a ‘requirement’ within the meaning of the Services Directive, addressed to the service providers in question. In other words, the rules it imposes regarding the conditions for the provision of the service contain an unavoidable stipulation, which as a ‘requirement’ must pass the test of compatibility with the Directive. However, the Directive deals separately with such ‘requirements’ for each of the two situations in which the provision of services may occur: the ‘freedom of establishment’ situation and the ‘freedom to provide services’ situation. This is made clear in the wording itself of the first question put by the referring court, which mentions both Article 15 and Article 16 of the Directive. It is therefore necessary to establish whether the disputed provision should be analysed exclusively in relation to one or the other freedom.

32. On initial consideration, this situation would seem to satisfy the conditions required by the case-law for the freedom of establishment to apply. ( 16 ) Certainly, the concessions at issue were relatively long (four and five years respectively); moreover, it would seem difficult to carry out an activity such as collecting taxes without a ‘fixed establishment’ in the municipality in question or, at least, in the relevant country.

33. However, in respect of the duration of the activity, it should be borne in mind that the concept of services within the meaning of the Treaty may include those services ‘which are provided over an extended period’. ( 17 ) Only ‘an activity carried out on a permanent basis, or at least without a foreseeable limit to its duration, does not fall within the Community provisions concerning the provision of services’. ( 18 ) The fact that the activity is expected to continue for four or five years is not, therefore, sufficient.

34. The use of some form of physical base in the State where the activity is pursued is not absolutely decisive either. It was held in Gebhard that it is open to ‘the provider of services within the meaning of the Treaty [to] equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question’. ( 19 )

35. In the light of the foregoing, and in so far as it is conceivable that, in this case, the service might be provided in either situation, it is my view that the disputed provision must be analysed, as the Italian court has requested, in relation to both the freedom of establishment and the freedom to provide services (Articles 15 and 16 of the Services Directive). ( 20 )

3. Analysis of the disputed provision in relation to Article 15 of the Services Directive (freedom of establishment)

36. The Services Directive has opted to list the restrictions to the freedom of establishment that, to use the Court’s classic terminology, cannot be justified, and those that can be justified provided that they satisfy a number of conditions. Thus, Article 14 lists ‘prohibited requirements’, which include, for example, discriminatory requirements, nationality requirements and residence requirements. Member States are not permitted to make access to, or the exercise of, a service activity subject to compliance with any of these requirements. By contrast, Article 15(2) lists a number of requirements that the Member States are permitted to retain provided that they satisfy the conditions in paragraph 3.

37. Amongst the requirements which are subject to this ‘evaluation’ or testing, Article 15(2)(c) lists those which relate to ‘the shareholding of a company’. The requirement on participants in a procedure for the award of a concession of the kind in question here (to have a fully paid-up share capital of at least EUR 10000000) might well be considered to fall within this category. We must therefore examine whether it satisfies the conditions of Article 15(3) of the Directive: non-discrimination, necessity and proportionality.

a) Non-discrimination

38. As already indicated, the disputed legislation applies to nationals and non-nationals. The requirement is therefore not directly or indirectly discriminatory from the nationality point of view (or from the point of view of the location of the registered office). ( 21 )

b) The ‘necessity’ condition or objective sought

39. By ‘necessity’, the Services Directive means the traditional condition that the requirement may be justified by a legitimate objective. ( 22 ) More specifically, in the field of freedom of establishment, the ‘necessity’ condition means that ‘requirements must be justified by an overriding reason relating to the public interest’ (Article 15(3)(b)). By virtue of Article 4(8) of the Directive, ‘overriding reason relating to the public interest’ means any reasons ‘recognised as such in the case law of the Court of Justice’ including those which it goes on to list. ( 23 ) This list is, however, simply by way of example: it seems clear that the intention of the Directive was not to limit the list of overriding reasons relating to the public interest to those expressly mentioned in Article 4, but to refer to a generic category which the case-law has always regarded as open.

40. In this case, the Italian authorities argue that the minimum share capital requirement at issue here is necessary in order to protect the financial interests of municipalities which contract out the assessment and collection service against the risk that, when the times comes to transfer the amounts collected to public funds, concessionaire companies are unable to do so due to insolvency.

41. The justification put forward by the Italian authorities could, therefore, be seen as an ‘overriding reason relating to the public interest’ pursuant to Article 15 of the Services Directive which is capable, in principle, of justifying the disputed requirement from a freedom of establishment perspective.

c) The proportionality test

42. The proportionality condition is a different issue.

43. In line with the case-law concerning grounds for restricting Treaty freedoms, Article 15(3)(c) of the Directive specifies that requirements must be suitable for securing the attainment of the objective pursued, that they must not go beyond what is necessary to attain that objective and that it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.

44. There is no issue concerning the suitability of the requirement in question vis-à-vis the objective relied on by the Italian authorities, namely the protection of the financial interests of the municipalities. It should be remembered that the amounts collected are not paid over to the municipality immediately but a period of time ( 24 ) elapses between collection and payment, during which the concessionaire can use the funds to carry out financial transactions which are income-producing and may potentially carry a risk. In such cases, the share capital of the concessionaire would constitute an adequate guarantee for the creditor municipality.

45. Despite this ‘suitability’ vis-à-vis the objective, the disputed measure lacks proportionality on two different levels.

46. First, the requirement to have a fully paid-up share capital of at least EUR 10000000 goes beyond what is necessary to achieve the objective of protecting the public authority against possible non-performance by the service concessionaire. In my view, the problem lies not in the magnitude of the level set so much as in the completely undiscriminating nature of the measure, which imposes the same quantitative requirement irrespective of the amounts which must be collected and, in essence, the level of financial risk to which the creditor municipality is exposed.

47. In practice, it is difficult to determine in abstract whether EUR 10000000 constitutes an adequate quantification of the financial ‘guarantee’ which the private concessionaire must offer the municipality, but it seems evident that, if the objective pursued is to provide the public authority with some kind of ‘collateral’ against the risk that the amounts actually collected by the concessionaire are not paid into public funds on time, the amount of such collateral or guarantee should vary depending on the level of risk. Given that putting a figure on the subjective risk of the concessionaire failing to perform is not something which could be readily estimated or predicted, ( 25 ) it would be more appropriate to start with an assessment of the objective risk, namely the tax-collecting potential of the municipality in question, since the greater the amount that the concessionaire is able to collect, the more the local authority will be prejudiced in the event of a payment default or delay.

48. From that starting point, the tax-collecting potential (and essentially the objective risk assumed by the municipality) can be quantified more or less precisely by taking into account only the number of taxpayers in the relevant municipality or adding in other factors (such as estimates of the amounts collected in previous tax years), either setting the requirement on a case-by-case basis or using groups or bands, but what is clear is that, one way or another, only a guarantee whose amount is set in relation to the potential risk which it is intended to cover can be seen as proportionate.

49. It is quite probable that, applying this type of solution, one would conclude that a guarantee in the amount of EUR 10000000 is not necessary in every case. ( 26 ) If so, the disputed requirement would be disproportionate in so far as it deprives small undertakings of any chance of accessing the activity.

50. Second, it is my view that the objective of protecting the financial interests of the municipalities affected could be attained by other less restrictive means, which, moreover, appear already to exist in the Italian legislation relating to public procurement. In fact, the referring court mentions Legislative Decree No 163 of 12 April 2006, ( 27 ) which lays down general requirements relating to participation in award procedures which could perform the function of a guarantee, such as provision of security, proof of technical and financial capacity, proof of solvency and creditworthiness, etc.

51. In the light of the foregoing, I would have to conclude that Article 15 of the Services Directive precludes a provision of national law such as the one in question.

4. Analysis of the disputed provision in relation to Article 16 of the Services Directive (freedom to provide services)

52. The analysis of the disputed provision in relation to the rules on freedom to provide services contained in Article 16 of the Directive has some parallels with the foregoing analysis relating to the freedom of establishment, and leads to the same conclusion that it is incompatible with the Directive on grounds of a lack of proportionality. However, it is important to mention the differences between the rules on the freedom of establishment and those on the freedom to provide services.

53. The first difference relates to the fact that, unlike Article 15 of the Services Directive, Article 16(2) contains a list of only six types of requirement, ( 28 ) and this does not include the requirement relating to share capital. However, there is no reason why this should not be seen as falling within the requirements envisaged in general terms by the third subparagraph of Article 16(1), which provides that ‘Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect’ the principles of non-discrimination, necessity and proportionality. The analysis therefore comes back to considering these three conditions.

54. The second difference revolves around the definition of the ‘necessity’ condition, which is much stricter in relation to the freedom to provide services than in relation to the freedom of establishment. Unlike Article 15(3), Article 16(1)(b) does not refer in a general way to ‘overriding reasons relating to the public interest’ as defined by case-law, and instead sets out an apparently exhaustive list of objectives which may justify the requirement in question: ‘reasons of public policy, public security, public health or the protection of the environment’. ( 29 )

55. This brings us on to the issue of whether an objective such as that put forward in relation to the disputed requirement comes within one of the four categories mentioned. Similarly, one might question the exhaustive nature of the Article 16(1)(b) list, or even its compatibility with the provisions of the Treaty and, essentially, the very validity of the Directive on this point. ( 30 )

56. However, as it happens, the way the proportionality test is applied is the same for the freedom to provide services as for the ‘freedom of establishment’ and, as previously indicated, the disputed provision does not pass the test in the latter context. For all these reasons, I propose that, in the case of the freedom to provide services, the Court of Justice proceed directly to apply the proportionality test as set out in points 45 to 50 of this Opinion, dispensing with the need first to address the question of the legitimacy of the stated objective.

57. Thus, in any event, Article 16 of the Services Directive also precludes a provision of national law such as the one in question in this case.

5. Conclusion to the first question referred

58. In the light of the foregoing, I would have to conclude that Articles 15 and 16 of the Services Directive preclude a provision of national law by virtue of which undertakings seeking to be awarded services relating to the assessment and collection of taxes and other local authority revenue must have a fully paid-up share capital of at least EUR 10000000.

B – The second question referred for a preliminary ruling

59. In the second of its questions referred for a preliminary ruling, the referring court turns to primary law as a parameter of legality and asks whether the disputed provision is compatible with Articles 3 EC, 10 EC, 43 EC, 49 EC and 81 EC.

60. In my view, the part of the second question which refers to Articles 3 EC, ( 31 ) 10 EC ( 32 ) and 81 EC (Article 101 TFEU) must be held inadmissible due to the fact that there is insufficient detailed information on the factual and legislative context to link the disputed provision with the Treaty rules on competition. Those requirements, which are a recurring theme in the case-law, ‘are of particular importance in the field of competition, which is characterized by complex factual and legal situations’. ( 33 ) Having excluded these articles, the second question referred for a preliminary ruling now relates only to Articles 43 EC and 49 EC (Articles 49 TFEU and 56 TFEU), in other words, the compatibility of the disputed provision with the freedom of establishment and freedom to provide services.

61. Now that it has been pared down to these limited terms, and in that we have concluded that the Services Directive is applicable in this case, it is not now necessary to reply to this second question. It should be recalled that there is extensive case-law ( 34 ) to the effect that the Treaty rules on freedoms cease to apply in fields which have been harmonised by the European Union legislature. ( 35 )

62. In any event, if the Services Directive were deemed inapplicable, the analysis of the disputed provision in relation to the Treaty would be essentially the same as that set out in the previous section: the proportionality of the restrictive measure adopted would still be the issue.

63. Of course, a ‘direct’ application of the Treaty could not be opposed on the grounds of the entirely domestic nature of the main proceedings. It is quite true that national legislation is ‘capable of falling within the scope of the provisions relating to the fundamental freedoms established by the Treaty only to the extent that it applies to situations connected with trade between the Member States’. Nevertheless, case-law also recognises that the Court’s answer to a question relating to the compatibility of this type of legislation with the Treaty may be useful to the referring court where the legislation in question applies to nationals and non-nationals alike. ( 36 )

64. On a separate point, in my view, the fact that the disputed provision of national law has already been repealed does not affect the foregoing conclusion, since it is not inconceivable that persons established in another Member State may have been affected by it whilst it was in force. To respond to the argument submitted by the Italian Government that the question referred is inadmissible, the Court’s reply is necessary in order to give judgment in the pending national proceedings, including the actions brought by Duomo, GSP and Irtel.

65. In conclusion, and in any event in the alternative, Articles 49 TFEU and 56 TFEU must be regarded as precluding a provision of national law such as the disputed provision, which lacks proportionality as described in points 45 to 50 of this Opinion.

VI – Conclusion

66. In conclusion, I propose that the Court should reply as follows to the questions referred by the Tribunale Amministrativo Regionale per la Lombardia: (1) Articles 15 and 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market preclude a provision of national law under which: — the award of services relating to the assessment and collection of taxes and other local authority revenue to persons who fail to satisfy the minimum financial requirement of fully paid-up share capital in the sum of EUR 10000000 is to be null and void; — persons entered in the relevant register of private persons authorised to carry out activities relating to the assessment and collection of taxes and other revenue of the provinces and municipalities are required to bring their share capital up to the minimum figure in question; — it is prohibited to acquire new contracts or participate in tender procedures for the operation of services relating to the assessment and collection of taxes and other local authority revenue until the abovementioned requirement to adjust share capital has been met; and companies in which all or a majority of the share capital is in public ownership are excluded from those provisions. (2) In the alternative, Articles 49 TFEU and 56 TFEU preclude a provision of national law such as that described in point (1) above.

( 1 ) Original language: Spanish.

( 2 ) OJ 2006 L 376, p. 36, ‘the Services Directive’ or ‘the Directive’.

( 3 ) On this point, see Barnard, C., ‘Unravelling the Services Directive’, Common Market Law Review, 2008, p. 382 and 383; van de Gronden, J., and de Waele, H., ‘All’s well that bends well: the constitutional dimension to the Services Directive’, European Constitutional Law Review, 2010, p. 404; Klamert, M., ‘Of empty glasses and double burdens: approaches to regulating the services market à propos the implementation of the Services Directive’, Legal Issues of Economic Integration 37, No 2 (2010), p. 129; and Mortelmans, K., ‘The relationship between the Treaty rules and Community measures for the establishment and functioning of the internal market – Towards a concordance rule’, Common Market Law Review, 2002, p. 1324 et seq.

( 4 ) See Barnard, C., op. cit., p. 351 and De la Quadra-Salcedo Janini, ‘Mercado interior y Directiva de servicios’, Revista catalana de dret públic, No 42, 2011, p. 257-293.

( 5 ) See van de Gronden, J., and de Waele, H., op. cit., p. 41 et seq.; and Peglow, K., ‘La libre prestation de services dans la directive no 2006/123/CE. Réflexion sur l’insertion dans le droit communautaire existant’, Revue trimestrielle de droit européen, 2008, paragraph 62 et seq.

( 6 ) Legislative Decree on emergency measures to support families, labour, employment and enterprise, and to reorganise the national strategic framework in the context of efforts to combat the crisis.

( 7 ) GURI No 22, 28 January 2009, ordinary supplement No 14.

( 8 ) GURI No 71, 26 March 2010.

( 9 ) GURI No 120, 25 May 2010.

( 10 ) I will use this term, which is consistent with the underlying theme of a European Union measure whose fundamental objective is the provision of services, whether or not in the context of establishment.

( 11 ) Case C-129/96 Inter-Environnement Wallonie [1997] ECR I-7411, paragraphs 45 and 46.

( 12 ) Case C-119/09 Société fiduciaire nationale d’expertise comptable [2011] ECR I-4749, paragraphs 19 and 20.

( 13 ) On this point, see Case C-422/05 Commission v Belgium [2007] ECR I-4749, paragraphs 64 to 68, in which the Court of Justice took into account the fact that the national legislation which was incompatible with a directive had entered into force less than three months before the expiry date of the period prescribed for transposing the Directive.

( 14 ) In this regard, see Inter-Environnement Wallonie, paragraph 49.

( 15 ) Case C-438/08 Commission v Portugal [2009] ECR I-10219, paragraphs 36 and 37, and the case-law referred to therein.

( 16 ) Case C-221/89 Factortame [1991] ECR I-3905, paragraph 20.

( 17 ) Case C-215/01 Schnitzer [2003] ECR I-14847, paragraphs 30 and 31. See also Case C-171/02 Commission v Portugal [2004] ECR I-5645, paragraph 26; Case C-208/07 von Chamier-Glisczinski [2009] ECR I-6095, paragraph 74; Case C-97/09 Schmelz [2010] ECR I-10465, paragraph 42; and Case C-458/08 Commission v Portugal [2008] ECR I-11599, paragraph 85.

( 18 ) Case 196/87 Steyman [1988] ECR 6159, paragraph 16; Schnitzer, paragraphs 27 to 29; and Case C-456/02 Trojani [2004] ECR I-7573, paragraph 28.

( 19 ) Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 27. See also recital 77 in the preamble to the Directive.

( 20 ) The Court will examine the measure in dispute in relation to one of the freedoms alone only if it is shown that one of them is entirely secondary in relation to the other and may be considered together with it. See Case C-275/92 Schindler [1994] ECR I-1039, paragraph 22; Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 31; and Case C-452/04 Fidium Finanz [2006] ECR I-9521, paragraph 34.

( 21 ) Any potential discrimination against private undertakings vis-à-vis those in which a majority of the share capital is in public ownership (which are not subject to this requirement) would not be relevant in connection with the first condition, as the Directive refers only to discrimination on grounds of nationality or location of the registered office. Moreover, the difference in treatment may be justified in the light of the objective sought and, in any event, this is not an issue which has been directly raised in the present case.

( 22 ) This may be a source of confusion, given that the test of ‘necessity’ has traditionally been regarded as one of the stages or parts of the proportionality test.

( 23 ) These are ‘public policy; public security; public safety; public health; preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artistic heritage; social policy objectives and cultural policy objectives’.

( 24 ) Payment is every three months.

( 25 ) The Italian legislature has already taken this into account to some extent by excluding undertakings in which the majority of the share capital is in public ownership, and which therefore have public funds behind them, from the scope of the requirement.

( 26 ) By amending the disputed provision in 2010 the Italian legislature tacitly accepted this lack of proportionality. The new rules, set out in the abovementioned Law No 73 of 2010, break down the minimum capital requirement depending on the number of inhabitants in the municipality in question, so that a share capital of EUR 10000000 is only required if the province or municipality in respect of which it is sought to pursue the activity has more than 200000 inhabitants (in the case of tax collection in a municipality with fewer than 10000 inhabitants or in several municipalities which together do not have more than 100000 inhabitants, the required amount is EUR 1000000; in the case of municipalities with fewer than 200000 inhabitants, it is EUR 5000000).

( 27 ) Codice dei contratti pubblici relativi ai lavori, servizi, forniture in attuazione delle direttive 2004/17/CE e 2004/18/CE (GURI No 100, 2 May 2006).

( 28 ) It seems that it is possible for these requirements to be justified, as Article 16(3) provides that ‘[t]he Member State to which the provider moves shall not be prevented from imposing requirements with regard to the provision of a service activity, where they are justified for reasons of public policy, public security, public health or the protection of the environment and in accordance with paragraph 1. …’.

( 29 ) With the exception of the protection of the environment, whose status as a public interest objective was conferred by case-law, the three remaining objectives are the same as those referred to in Article 52 TFEU (which also applies to the freedom to provide services by virtue of Article 62 TFEU).

( 30 ) In his Opinion in the Société fiduciaire nationale d’expertise comptable case, delivered on 18 May 2010, Advocate General Mazák has already pointed out that the possible exhaustive nature of the Article 16(1)(b) list could be inconsistent with other provisions of the Services Directive itself, particularly Article 24(2): ‘It appears, at first sight, that professional rules which constitute an obstacle to the freedom to provide services can be justified only by the four reasons mentioned in Article 16(1)(b) of Directive 2006/123. However, that interpretation would make it impossible to implement the first sentence of Article 24(2) of Directive 2006/123, which states the reasons justifying the existence of rules governing professional ethics and conduct such as, in this case, the prohibition on canvassing, namely protection of the independence, dignity and integrity of the profession, as well as of professional secrecy. The same rules governing professional ethics and conduct cannot be required to abide by the other reasons at the same time’ (point 62).

( 31 ) Now repealed. Its substance has been incorporated into Articles 3 to 6 TFEU.

( 32 ) Now repealed. Its substance has been incorporated into Article 4(3) TEU relating to sincere cooperation.

( 33 ) Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 7; Case C-176/96 Lehtonen and Castors Braine [2000] ECR I-2681, paragraph 22; Case C-134/03 Viacom Outdoor [2005] ECR I-1167, paragraph 23; Case C-238/05 Asnef-Equifax and Administración del Estado [2006] ECR I-11125, paragraph 23; Case C-250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I-11135, paragraph 20; and Case C-384/08 Attanasio Group [2010] ECR I-2055, paragraph 32.

( 34 ) To this effect, see Case 5/77 Tedeschi [1977] ECR 1555, paragraph 35; Case C-150/88 Parfümeriefabrik 4711 [1989] ECR 3891, paragraph 28; Case C-37/92 Vanacker and Lesage [1993] ECR I-4947, paragraph 9; Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 18; Case C-1/96 Compassion in World Farming [1998] ECR I-1251, paragraph 47; Case C-112/97 Commission v Italy [1999] ECR I-1821, paragraph 54; Case C-350/97 Monsees [1999] ECR I-2921, paragraph 24; Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32; Case C-241/01 National Farmers’ Union [2002] ECR I-9079, paragraph 48; Case C-99/01 Linhart and Biffl [2002] ECR I-9375, paragraph 18; Case C-257/06 Roby Profumi [2008] ECR I-189, paragraph 14; and Case C-132/08 Lidl Magyarország [2009] ECR I-3841, paragraph 42. See also the Opinion of Advocate General Geelhoed delivered on 4 July 2002 (Joined Opinion in Case C-221/00 Commission v Austria [2003] ECR I-1007; Joined Cases C-421/00, C-426/00 and C-16/01 Sterbenz and Haug [2003] ECR I-1065), point 45. The Advocate General also pointed out a certain lack of consistency in the case-law relating to this point (point 44).

( 35 ) In my view, this case-law is applicable here, despite the fact that the Services Directive does not fit very well into the ‘classic’ model of a European Union harmonising measure.

( 36 ) Case C-448/98 Guimont [2000] ECR I-10663, paragraph 21; Case C-6/01 Anomar and Others [2003] ECR I-8621, paragraph 39; Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, paragraph 29; Case C-384/08 Attanasio Group [2010] ECR I-2055, paragraphs 23 and 24; and Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [2010] ECR I-4629, paragraphs 39 and 40.