Case C-365/06: Action brought on 7 September 2006 — Commission of the European Communities v Italian Republic
Date: 2006-11-18
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, data processing, freedom to provide services, pay

18.11.2006

EN

Official Journal of the European Union

C 281/23

Community law such as to override the formal limitation
laid down by Article 113(5) of Legislative Decree No
267/2000 and by Articles 2(6) and 15(1) of Regional
Lombardy Law No 26 of 12 December 2003, and is it
therefore capable of compelling compliance in such a way
as to allow persons not having the status of joint stock
companies to participate in tendering procedures?

2. In the event that the Court does not consider the above
rules to be the expression of a fundamental principle of
Community law, does Article 4(1) of Directive 2004/18/EC
or the analogous Article 26(2) of Directive 92/50 (in the
event that the latter is regarded as the legislative point of
reference) constitute, rather, an implicit corollary or a ‘deri-
vative principle’ of the principle of competition, viewed in
conjunction with those concerning administrative transpar-
ency and non-discrimination on grounds of nationality, and
does it therefore, as such, have immediate binding effect and
take precedence over any possibly conflicting domestic
provisions laid down by Member States to govern public
works contracts falling outside the scope of
the direct
applicability of Community law?

3. Are Article 113(5) of Legislative Decree No 267/2000 and
Articles 2(6) and 15(1) of the Regional Lombardy Law of 12
December 2003 compatible with the Community principles
set out in Article 39 (free movement of workers within the
Community), Article 43 (freedom of establishment), Articles
48 and 81 (agreements restricting competition) of
the
Treaty establishing the European Community, and therefore,
in the event of a conflict being identified, must the above-
mentioned national provisions be disapplied as conflicting
with Community provisions that have direct binding effect
and take precedence over domestic provisions?

4. Are Article 113(5) of Legislative Decree No 267/2000 and
Articles 2(6) and 15(1) of the Regional Lombardy Law of 12
December 2003 compatible with Article 9(1) of Directive
75/442/EEC or the analogous Article 7(2) of Directive
2006/12/EC of 5 April 2006 (in the event that the latter is
reference), which
regarded as
provide, respectively, that ‘any establishment or undertaking
which carries out the operations specified in Annex II A
must obtain a permit from the competent authority referred
to in Article 6.’ and ‘[t]he plans referred to in paragraph 1
may, for example, cover:
(a) the natural or legal persons
empowered to carry out waste management’?

the legislative point of

(1) OJ L 134, p. 114.
(2) OJ L 209, p. 1.

Action brought on 7 September 2006 — Commission of
the European Communities v Italian Republic

(Case C-365/06)

(2006/C 281/37)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and E. Montaguti, Agents)

Defendant: Italian Republic

Form of order sought

— Declare that:

— by restricting the activity of preparing and printing pay
slips
to employment consultants, or persons with
equivalent status, registered with the relevant profes-
sional associations;

— by laying down specific requirements concerning the
composition and establishment of data-processing
centres;

— by making registration with such professional associa-
tions subject to a requirement of residence in Italy,

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

and that:

— by prohibiting any person from pursuing any activity as
employment consultant unless that person is registered
with a professional association in Italy,

the Italian Republic has failed to fulfil its obligations under
Article 49 EC;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

— Restricting the activity of preparing and printing pay slips
to employment consultants and other professional groups
set out exhaustively in the legislation constitutes a restric-
tion on freedom of establishment and freedom to provide
services guaranteed by Articles 43 EC and 49 EC. The activ-
ities provided by data-processing centres essentially consist
of simply carrying out instructions received from clients.
That entails entering data provided by the client onto par-
ticular computer software which has been programmed

C 281/24

EN

Official Journal of the European Union

18.11.2006

with information provided by that client
in accordance
with the legislation in force. The work of data processing
centres preparing pay slips does not therefore entail any
responsibility for calculating an individual employee's net
salary on the basis of the relevant legislation, which requires
analysis
legislation.
Restricting the activity of preparing and printing pay slips
to employment consultants cannot therefore be justified in
the light of the need to protect workers' rights since such
tasks are essentially executory and do not require specific
professional qualifications.

and in-depth knowledge of

that

Reference for a preliminary ruling from the Korkein
hallinto-oikeus (Finland) lodged on 8 September 2006 —
DNA Verkot Oy

(Case C-366/06)

(2006/C 281/38)

Language of the case: Finnish

— In order to be able to provide the services of preparing and
printing pay slips to small undertakings, data-processing
centres must be ‘formed and composed exclusively of
persons registered with the relevant professional associa-
tions’.
‘That requirement … precludes the board members of
foreign parent companies from being founder members or from
sitting on the board of management of an Italian subsidiary
unless they arrange to be registered with the relevant professional
associations. … [This] is a covert form of discrimination which,
through the application of a criterion other than nationality,
achieves the same result as discrimination which is overtly based
on nationality.’
(Opinion of Advocate General Mischo in
Case C-79/01 Payroll Data Services [2002] ECR I-8923).

Referring court

Korkein hallinto-oikeus

Parties to the main proceedings

Applicant: DNA Verkot Oy

— Italian legislation provides that any person applying for
registration with such an association must submit a certifi-
cate of residence with the application. If the purpose of the
residence requirement is to enable checks to be carried out
and, where necessary, action to be taken against providers
of services acting in breach of the rules, such a requirement
appears wholly disproportionate. Indeed, regardless of the
is perfectly possible to carry out
place of residence,
checks and,
impose penalties on any data-
processing centre established in any Member State. The resi-
dence requirement is not therefore justified by the need to
protect workers relied on by the Italian authorities.

if necessary,

it

— The Italian legislation that

is the subject of this action
provides, finally, that even data processing centres estab-
lished in other Member States must, in order to be able to
offer their services, have within their internal structure
employment consultants who are registered with an Italian
professional association. The requirement for employment
consultants to be registered with a professional association
appears to go beyond what is necessary for the protection
of workers and makes the provision of services subject to
an actual authorisation procedure on the part of
the
competent authorities without any distinction being made
between permanent and temporary provision of services.
To ignore such a distinction would amount to depriving ‘of
all practical effectiveness the provisions of the Treaty whose object
is, precisely, to guarantee the freedom to provide services’, (Case
C-58/98 Corsten [2000] ECR I-7919).

Other parties: Sonera Mobile Networks Oy, Viestintävirasto

Questions referred

the European Parliament and of

1. Must Article 4(1) on the right of appeal of Directive
2002/21/EC (1) of
the
Council of 7 March 2002 on a common regulatory frame-
work for electronic communications networks and services
(Framework Directive) be interpreted in such a way that a
telecommunications undertaking must be considered to
have a right of appeal against a decision in which the view
is taken that a competitor of the telecommunications under-
taking concerned does not have significant market power
status?

2. If the answer to Question 1 is affirmative, an answer to the

following question is requested:

Does the requirement in Article 4(1) of Framework Directive
2002/21/EC with regard to taking into account the facts of
the case and an effective appeal mechanism mean that a
national court may examine the facts of the case, make a
legal evaluation, and give judgment in the case, without the
Commission's decision under Article 7(4) of the Framework
Directive and its reasoning in respect of a market analysis
restricting the jurisdiction of the national court?

(1) OJ L 108, p. 33.