Case C-257/05: Action brought on 17 June 2005 by the Commission of the European Communities against the Republic of Austria
Date: 2005-09-03
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, freedom to provide services

3.9.2005

EN

Official Journal of the European Union

C 217/27

Action brought on 17 June 2005 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-257/05)

(2005/C 217/53)

establishment is disproportionate for the guarantee of quality
of supervision with regard to the interests which it is supposed
to protect, since public safety and the protection of workers
and consumers may already be ensured by the system laid
down in the Kesselgesetz for the authorising and supervision of
inspection bodies, without the necessity of an establishment
within the Member State.

(Language of the case: German)

(1) BGBl. No 211/1992.

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 17 June
2005 by the Commission of the European Communities, repre-
sented by Enrico Traversa and Wolfgang Bogensberger, acting
as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by requiring in Paragraph 21(4) of the Kessel-
gesetz (Law on boilers) (1) that only applicants having a
head office in Austria may be approved as a boiler inspec-
tion body, the Republic of Austria has failed to fulfil its obli-
gations under Article 49 EC;

2. order the Republic of Austria to pay the costs.

Pleas in law and main arguments

In accordance with Article 49 EC, limitations on the freedom
to provide services, within the Community, of Member State
nationals who are established in a different Member State from
that of the recipient of the services are prohibited.

Paragraph 21 of the Republic of Austria's Kesselgesetz governs
the requirements for the issue of a licence to operate as a boiler
inspection body. Under Paragraph 21(4), only those applicants
established in Austria may be licensed as boiler inspection
bodies. An inspection body for pressurised equipment estab-
lished in another Member State, wishing to offer its services in
Austria, is therefore faced with the necessity first to establish a
branch in Austria.

That
legislation constitutes a limitation on the freedom to
provide services within the meaning of Article 49 EC. It also
follows from the Court's case-law that a requirement of estab-
lishment runs directly contrary to the freedom to provide
services, since it makes the provision of services through under-
takings established in another Member State impossible.

The grounds stated by the Republic of Austria — such as, for
example, public safety or the protection of workers and consu-
mers — are not such as to justify that
limitation on the
freedom to provide services. A limitation on the freedom to
provide services may — according to the Court's case-law —
be justified only to the extent that public interest is not already
protected by laws to which the service provider is subject in
the Member State where it is established. The requirement of

Action brought on 23 June 2005 by the Commission of
the European Communities against the Italian Republic

(Case C-263/05)

(2005/C 217/54)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 23 June
2005 by the Commission of the European Communities, repre-
sented by M. Kontantinidis and L. Cimaglia, of its Legal Service,
acting as Agents.

The Commission claims that the Court should:

1. declare that, by having adopted and maintained in force a
provision (Article 14 of Decree-Law No 138 of 8 July 2002,
that
converted into Law No 178 of 8 August 2002)
provides for the exclusion from the ambit of Decree-Law
No 22/97, which transposed into Italian national
law
Council Directive 91/156/EEC (1) of 18 March 1991
amending Directive 75/442/EEC (2) on waste, substances or
objects intended for operations for the disposal or recovery
of waste not expressly listed in Annexes B or C to Legisla-
tive Decree No 22/97, and also goods, substances or resi-
dual production materials which the holder intends or is
required to discard, when they may be and are reused in a
production or consumption cycle, on condition that they
have undergone no prior treatment and that they do not
harm the environment or,
if when they have undergone
prior treatment, the latter is not one of the recovery opera-
tions listed in Annex C to Legislative Decree No 22/97, the
Italian Republic has failed to fulfil
its obligations under
Article 1(a) of Directive 75/442/EEC on waste, as amended
by Directive 91/156/EC;