Case C-134/05: Action brought on 22 March 2005 by the Commission of the European Communities against the Italian Republic
Date: 2005-06-11
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, freedom to provide services, right of establishment

11.6.2005

EN

Official Journal of the European Union

C 143/21

Pleas in law and main arguments

5. by requiring traders visibly to display a table setting out

all the services which can be supplied to clients;

The Republic of Austria has failed to adopt the measures neces-
sary to implement the Directive at federal level in relation to
the provisions concerning discrimination on the grounds of
disability, and has altogether failed, with the exception of the
regions of Vienna and Lower Austria, to adopt the measures
necessary to implement the directive at regional level or, in any
event, has failed to communicate them to the Commission.

(1) OJ L 303, 02.12.2000, p. 16.

6. by providing that the local police authority (Questore)
may make the licence subject to further restrictions;

7. by restricting the freedom of traders to set prices;

8. by declaring that

the business of credit recovery is
incompatible with the banking and credit services which
are the subject of Legislative Decree No 385/93;

the Italian Republic has failed to fulfil its obligations under
Articles 43 and 49 of the EC Treaty;

Action brought on 22 March 2005 by the Commission of
the European Communities against the Italian Republic

— order the Italian Republic to pay the costs.

(Case C-134/05)

Pleas in law and main arguments

(2005/C 143/30)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 22 March
2005 by the Commission of the European Communities, repre-
sented by E. Traversa, member of
the Commission's Legal
Service.

The applicant claims that the Court should:

— declare that:

1. by subjecting the business of extrajudicial credit recovery
to a licence issued by the local police authority
(Questore);

2. by limiting the validity of the licence to the province in

which it was issued;

1. The obligation to obtain a licence from the police authority
is incompatible with Article 49 of the Treaty in that it
applies without distinction to all suppliers established in
another Member State, without regard to whether those
suppliers have complied with the rules for the protection of
the public interest in their country of origin.

2. Italy is currently divided into 103 provinces. That means
that a Community trader who wants to set up business in
Italy and extend his business throughout a substantial part
of Italy must make as many applications for a licence as
there are provinces making up the area he wishes to cover
and a total of 103 applications if he wishes to set up and
carry on business in the whole of Italy.

3. A company which wishes to set up in Italy and operate in a
certain area not only has to obtain several licences but also
has to acquire as many premises as he has licences and as
provinces are covered. That obligation is clearly dispropor-
tionate, given the cost to the operators, as well as not being
indispensable to the carrying on of the business. Further-
more, the obligation to have premises amounts to a require-
ment that a person who provides cross-border services must
become established in the recipient Member State.

3. by tying the carrying on of the business of extrajudicial
in the
recovery to specific premises set out

credit
licence;

4. by making the carrying on of that business in a province
for which the operator does not have a licence subject
to contract of agency with an authorised representative;

4. A trader who lawfully carries on business must be able to
operate throughout Italy without having to enter into a
contract of agency with an intermediary where that operator
wishes to operate outside the province for which he has
obtained a licence. Indeed since that intermediary works in
the same sector he is a potential competitor of the principal
and furthermore the appointment of an intermediary costs
the principal time and money.

C 143/22

EN

Official Journal of the European Union

11.6.2005

5. The obligation visibly to display the table of services in the
premises presupposes that the trader necessarily disposes of
premises from which to operate. According to the Court's
settled case-law, the obligation to dispose of premises in the
recipient Member State amounts to a requirement that the
trader who supplies cross-border services be established in
the recipient Member State.

6. The residual power of each provincial police authority
(Questore) to make the licence for the business of credit
recovery subject
requirements’
infringes the requirements of transparency and objectivity
which the Court's case-law stipulates, even where the power
of the Questore is circumscribed by the law and by the
objective pursued.

to ill defined ‘additional

bedrijfsleven (Netherlands) of 22 March 2005, received at the
Court Registry on 25 March 2005, for a preliminary ruling in
the proceedings between Stichting Zuid-Hollandse Milieufeder-
atie and Minister van Landbouw, Natuur en Voedselkwaliteit
(intervener: LTO Nederland) on the following questions:

1. May Article 8 of the Plant Protection Products Directive (1)
be applied by the national court after the period referred to
in Article 23 thereof has expired?

2. Must Article 16 of the Biocidal Product Directive (2) be inter-
preted as having the same meaning as Article 8(2) of the
Plant Protection Products Directive?

7. The restrictions on the freedom to set prices constitute an
obstacle both to the freedom of establishment and the
freedom to provide services. A new trader who attempts to
enter a given market must be able to compete with traders
already operating in that market and the price of
the
services is a factor of primary importance in acquiring
customers.

3. Must Article 8(2) of the Plant Protection Products Directive
be interpreted as a standstill obligation in the sense that a
Member State has the power to alter the existing system or
practice only in so far as this results in an assessment in
connection with the authorisation of plant protection
products which is consistent with this directive?

8. The incompatibility of the Italian rules with the carrying on
of banking and credit services results in a prohibition on the
suppliers of banking and credit services from other Member
States from carrying on the business of credit recovery in
Italy, pursuant either to the freedom of establishment or the
freedom to provide services guaranteed by the Treaty.

4. If the answer to Question 3 is in the negative:

Does Article 8(2) of the Plant Protection Products Directive
impose limits on amendments to national rules concerning
the placing on the market of biocidal products, and if so
what limits?

5. If the answer to Question 4 is in the negative:

Reference for a preliminary ruling from the College van
Beroep voor het bedrijfsleven by order of that court of 22
March 2005 in Stichting Zuid-Hollandse Milieufederatie v
Minister van Landbouw, Natuur en Voedselkwaliteit(inter-
vener: LTO Nederland)

By what criteria is it necessary to assess whether there are
measures liable seriously to compromise achievement of the
result prescribed by the directive?

6. If the answer to Question 2 is in the negative:

(Case C-138/05)

(2005/C 143/31)

(Language of the case: Dutch)

(a) Must Article 8(2) of the Plant Protection Products Direc-
tive be interpreted as meaning that, where a Member
State authorises the placing on the market in its territory
of
active
substances not listed in Annex I to that directive that
were already on the market two years after the date of
notification of that directive, regard must also be had to
the provisions of Article 4 thereof?

containing

protection

products

plant

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the College van Beroep voor het

(b) Must Article 8(2) of the Plant Protection Products Direc-
tive also be interpreted as meaning that, where a
Member State authorises the placing on the market in
its territory of plant protection products containing
active substances not listed in Annex I to that directive