Commission of the European Communities v Italian Republic.
Date: 2002-02-07
10 The Commission has not responded to that request and it must be pointed out that, under consistent case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-435/99 Commission v Portugal [2000] ECR I-11179, paragraph 16, and Case C-111/00 Commission v Austria [2001] ECR I-7555, paragraph 13).
17 In order to decide whether the first complaint of the Commission is well founded, it is appropriate to point out that the requirement that undertakings providing temporary labour which wish to supply manpower to customers established in Italy must have their registered office or a branch office on Italian territory is directly contrary to the freedom to provide services, in so far as it renders impossible, in that Member State, the supply of services by undertakings established in other Member States (see, to that effect, Commission v Belgium, cited above, paragraph 27, and Case C-263/99 Commission v Italy [2001] ECR I-4195, paragraph 20).
18 In order for such a requirement, which, as the Court has repeatedly held, is the very negation of the fundamental freedom to provide services, to be accepted, it must be shown that it constitutes a condition indispensable for attaining the objective pursued (see Case C-222/95 Parodi [1997] ECR I-3899, paragraph 31, and Case C-493/99 Commission v Germany [2001] ECR I-8163, paragraph 19).
19 In that regard, it follows from the case-law of the Court that the protection of workers is among the overriding reasons of public interest capable of justifying a restriction on the freedom to provide services (see Webb, cited above, paragraph 19; Collectieve Antennevoorziening Gouda, cited above, paragraph 14; and Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 36).
26 It follows that the Commission's first complaint must be upheld.
The obligation to establish a guarantee with a credit institution having its registered office or a branch office on Italian territory
31 It is settled case-law that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State, where he lawfully provides similar services (see, among others, Parodi, cited above, paragraph 18, and Arblade and Others, cited above, paragraph 33).
33 In relation to the arguments relied upon by the Italian Government to justify that restriction, it is appropriate to point out that it is also settled case-law that the freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where it is established (see, in particular, the above-cited judgments in Parodi, paragraph 21; Arblade and Others, paragraph 34; and Commission v Italy, paragraph 23).
34 By requiring that all undertakings establish the guarantee required by Article 2(2)(c) of Law No 196/97 in order to obtain the licence required to carry on, in Italy, the business of providing temporary labour, that Law precludes the taking into account of obligations that, by virtue of their purpose, are comparable, to which the provider is already subject in the Member State in which it is established (see, to that effect, as well as the above-cited judgments in Commission v Belgium, paragraph 38, and Commission v Italy, paragraph 24, Case C-358/98 Commission v Italy [2000] ECR I-1255, paragraph 13).
36 In this regard, it is appropriate to point out, firstly, that it is not disputed that it follows from point IX of the nomenclature of capital movements appearing in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L 178, p. 5), that guarantees granted by non-residents to residents or by residents to non-residents constitute movements of capital within the meaning of Article 1 of that directive and are therefore covered by Article 56(1) EC (see, to that effect, Case C-222/97 Trummer and Mayer [1999] ECR I-1661, paragraphs 21 to 24).
38 Further, a national provision such as Article 2(2)(c) of Law No 196/97, in that it restricts the establishment of the guarantees required to obtain the said licence to credit institutions having their registered office or a branch office in Italy, also constitutes discrimination against credit institutions established in other Member States, and is prohibited by the first paragraph of Article 49 EC (see, to that effect, Svensson and Gustavsson, cited above, paragraph 12).