EN Official Journal of the European Union CE 84/4

(2004/C 84 E/0005)

WRITTEN QUESTION E-0620/03

by Carles-Alfred Gasòliba i Böhm (ELDR) to the Commission

(3 March 2003)

Subject: Freedom of establishment and the securing of authorisation to carry out roadworthiness tests on vehicles in Germany

Restrictions on the freedom of nationals from one Member State to establish themselves within the territory of another Member State are prohibited under Article 43 of the EC Treaty, save where they are justified in the public interest. Those restrictions have been interpreted by the Court of Justice as including rules or provisions which apply both to nationals and to non-nationals alike but which in practice make it problematic or less advantageous for nationals from one Member State to establish themselves in another.

Annex VIIIb of the 28 September 1988 Strassenverkehrs-Zulassungs-Ordnung (StVZO) lays down the requirements which bodies wishing to carry out roadworthiness tests in Germany must fulfil in order to secure the necessary authorisation from each federal state. One such requirement is that of submitting a series of documents and demonstrating that certain conditions of a practical nature have been met, including one to the effect that the body seeking authorisation must comprise a minimum of 60 independent experts and that a minimum number of those experts must be based within the country in which recognition is being sought.

Does the Commission not think that insisting that those requirements be met before authorisation can be granted restricts freedom of establishment, since it calls for business investment to be made and entrepreneurial risks to be taken in advance? In practice, this makes it less attractive for a national from some other Member State to set up a vehicle roadworthiness testing business in Germany.

Does the Commission not consider that the requirements laid down under German law place disproportionate restrictions on the freedom of establishment, even if such restrictions may be justified in the public interest?

Does the Commission not consider the German law in question to be incompatible with the general principles underlying Council Directive 96/96/EC (1) of 20 December 1996 on the approximation of the laws of the Member States relating to roadworthiness tests for motor vehicles and their trailers?

Supplementary answer given by Mr Bolkestein on behalf of the Commission

(10 March 2004)

In response to Written Question 620/03 (2) from the Honourable Member on the freedom of establishment and the securing of authorisation to carry out roadworthiness tests on vehicles in Germany and to Oral Questions 150/03 (3) and 153/03 (3) from Honourable Members Valdivielso de Cué and Vidal-Quadras Roca on the same subject, the Commission launched an enquiry concerning the provisions laid down in Annex VIIIb to the StVZO of 28 September 1998.

The enquiry reveals that bodies wishing to carry out roadworthiness tests on vehicles in Germany must first secure the necessary authorisation from each federal state and fulfil a whole series of requirements relating primarily to the constitution of the body and management by a minimum of 60 experts including a sufficient number of inspection engineers established in the area in which recognition has been obtained.

Under Article 43 of the EC Treaty all measures restricting the freedom of establishment in a disproportionate manner are prohibited. In addition, according to the case law of the Court of Justice, Article 43 of the EC Treaty prohibits not only discrimination based on nationality (4) but also all covert forms of discrimination (5), as well as stating that ‘any national measure (…) even though it is applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by Community nationals, including those of the Member State which enacted the measure, of fundamental freedoms guaranteed by the Treaty’ (6). However, restrictions could nevertheless still be compatible with the Treaty if they were justified ‘by pressing reasons of public interest (see to that effect, judgment in Case 71/76 Thieffry v. Conseil de l'Ordre des Avocats à la Cour de Paris [1977] ECR 765, paragraphs 12 and 15). It would however also be necessary in such a case for application of the national rules in question to be appropriate for ensuring attainment of the objective they pursue and not to go beyond what is necessary for that purpose’ (6).

According to the information provided by the German authorities, the provisions contained in the StVZO are intended to guarantee the independence and efficiency of organisations in charge of roadworthiness testing and to ensure that such organisations have efficient and transparent internal structure in the area in which recognition has been obtained.

Therefore, even if it seems legitimate for Member States to take all necessary measures to ensure that the quality and methods of roadworthiness testing carried out on vehicles with the intention of maintaining road safety, the fact still remains that they must nevertheless endeavour to do so in a manner which respects the principle of proportionality. The Commission has doubts concerning the proportionality of the provisions in StVZO. This Written Question will now be registered as a complaint within the framework of the procedure laid down in Article 226 of the EC Treaty.

(1) OJ L 46, 17.2.1997, p. 1.

(2) OJ C 222 E, 18.9.2003.

(3) April 2003 part-session.

(4) ECJ, 30 March 1993, Konstantidinis, 168/91, paragraph 12.

(5) ECJ, 13 July 1993, Commerzbank, C-330/91, paragraph 14.

(6) ECJ, 31 March 1993, Kraus, C-19/92, paragraph 32.