Sodemare SA, Anni Azzurri Holding SpA and Anni Azzurri Rezzato Srl v Regione Lombardia.
Date: 1997-06-17
19 The obligation to state reasons laid down in Article 190 of the Treaty concerns only acts of the institutions.  It is true that Community law imposes the obligation to state reasons for national decisions affecting the exercise of a fundamental right conferred on individuals by the Treaty (see, in particular, Case 222/86 UNECTEF v Heylens and Others [1987] ECR 4097, paragraphs 14 to 17).  However, in view of its purpose, such an obligation concerns only individual decisions adversely affecting individuals against which the latter must have some remedy of a judicial nature, and not national measures of general scope.
24 Since the Luxembourg company is involved on a stable and continuous basis in the economic life of Italy, that situation falls within the provisions of the chapter of the Treaty on freedom of establishment, namely Articles 52 to 58, and not those of the chapter concerning services (see, to that effect, Case 2/74 Reyners v Belgium  [1974] ECR 631, paragraph 21, and Case C-55/94 Gebhard v Consiglio degli Avvocati e Procuratori di Milano [1995] ECR I-4165, paragraph 25).
25 As regards Article 58 of the Treaty, taken in isolation (second question), it must be borne in mind that the effect of that provision is to assimilate, for the purpose of giving effect to the chapter relating to the right of establishment, companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community, to natural persons who are nationals of one of the Member States, although non-profit-making companies are excluded from the benefit of that chapter (see Case 182/83 Fearon v Irish Land Commission [1984] ECR 3677, paragraph 8).  Since that provision does no more than define the class of persons to whom the provisions on the right of establishment apply, it cannot preclude, as such, national rules of the kind at issue in the main proceedings.
27 In assessing the compatibility of the non-profit condition with those provisions of the Treaty, it must first be borne in mind that, as the Court has already held in Case 238/82 Duphar and Others v Netherlands State [1984] ECR 523, paragraph 16, and Joined Cases C-159/91 and C-160/91 Poucet and Pistre v AGF and Cancava  [1993] ECR I-637, paragraph 6, Community law does not detract from the powers of the Member States to organize their social security systems.
32 In that regard, it must be stated that, as Community law stands at present, a Member State may, in the exercise of the powers it retains to organize its social security system, consider that a social welfare system of the kind at issue in this case necessarily implies, with a view to attaining its objectives, that the admission of private operators to that system as providers of social welfare services is to be made subject to the condition that they are non-profit-making.
33 Moreover, the fact that it is impossible for profit-making companies automatically to participate in the running of a statutory social welfare system of a Member State by concluding a contract which entitles them to be reimbursed by the public authorities for the costs of providing social welfare services of a health-care nature is not liable to place profit-making companies from other Member States in a less favourable factual or legal situation than profit-making companies from the Member State in which they are established.
37 In that regard it must be borne in mind that the right freely to provide services may be relied on by an undertaking as against the State in which it is established if the services are provided for persons established in another Member State (Case C-18/93 Corsica Ferries [1994] ECR I-1783, paragraph 30; Case C-379/92 Peralta [1994] ECR I-3453, paragraph 40; and Case C-384/93 Alpine Investments [1995] ECR I-1141, paragraph 30).
38 On the other hand, those same provisions do not cover the situation where a national of a Member State goes to the territory of another Member State and establishes his principal residence there in order to receive services there for an indefinite period (Case 196/87 Steymann v Staatssecretaris van Justitie [1988] ECR 6159, paragraph 17).  Those provisions cannot be applied to activities which are confined in all respects within a single Member State (Case 52/79 Procureur du Roi v Debauve and Others [1980] ECR 833, paragraph 9, and Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 37).
41 It must be borne in mind that, in themselves, Articles 85 and 86 of the Treaty are concerned solely with the conduct of undertakings  and not with laws or regulations adopted by Member States.  However, it is settled case-law that Articles 85 and 86, read in conjunction with Article 5 of the Treaty, require the Member States to refrain from introducing or maintaining in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see, in particular, Case C-96/94 Centro Servizi Spediporto v Spedizione Marittima del Golfo [1995] ECR I-2883, paragraph 20, and Joined Cases C-140/94, C-141/94 and C-142/94 DIP and Others v Comune di Bassano del Grappa and Comune di Chioggia [1995] ECR I-3257, paragraph 14).
42 The Court of Justice has already held that Articles 5 and 85 are infringed where a Member State requires or favours the adoption of agreements, decisions or concerted practices contrary to Article 85 or reinforces their effects, or where it deprives its own rules of the character of legislation by delegating to private economic operators the responsibility for taking decisions affecting the economic sphere (Centro Servizi Spediporto, cited above, paragraph 21, and DIP and Others, cited above, paragraph 15).
44 As regards Articles 3(g), 5 and 86 of the Treaty, they could only apply to rules of the kind at issue in the main proceedings if it were proved that such rules placed an undertaking in a position of economic strength enabling it to prevent effective competition from being maintained on the relevant market by placing it in a position to behave to an appreciable extent independently of its competitors, of its customers and ultimately of consumers (Centro Servizi Spediporto, cited above, paragraph 31, and DIP and Others, cited above, paragraph 24).
45 The Court has held that Article 86 of the Treaty prohibits abusive practices resulting from the exploitation by one or more undertakings of a dominant position on the common market or in a substantial part of it in so far as those practices may affect trade between Member States (Case C-393/92 Almelo and Others [1994] ECR I-1477, paragraph 40).