Commission of the European Communities v Italian Republic.
Date: 2002-01-15
8 It should be noted at the outset that the Court may consider of its own motion whether the conditions laid down in Article 226 EC for an action for failure to fulfil obligations to be brought are satisfied (Case C-362/90 Commission v Italy [1992] ECR I-2353, paragraph 8).
10 It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 23).
11 It follows that, first, the subject-matter of the proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision (Commission v Netherlands, cited above, paragraph 23). Accordingly, the application must be founded on the same grounds and pleas as the reasoned opinion (see, in particular, Case C-35/96 Commission v Italy [1998] ECR I-3851, paragraph 28). If a charge was not included in the reasoned opinion, it is inadmissible at the stage of proceedings before the Court.
12 Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see, in particular, Case C-207/96 Commission v Italy [1997] ECR I-6869, paragraph 18).
16 It is clear from the very terms of the second paragraph of Article 226 EC that the Commission may not bring proceedings before the Court for Treaty infringement unless a Member State has failed to comply with the reasoned opinion within the time-limit notified to it for that purpose (see Case C-362/90 Commission v Italy, cited above, paragraph 9).
20 However, it must be borne in mind that in an action for failure to fulfil obligations brought by the Commission under Article 226 EC, the expediency of which is a matter for the Commission alone to judge, it is for the Court to determine whether or not the alleged breach of obligations exists, even if the State concerned no longer denies the breach (Case C-243/89 Commission v Denmark [1993] ECR I-3353, paragraph 30).
21 The organisation of trade fairs is an economic activity falling within the chapter of the Treaty dealing with the right of establishment when that activity is carried on by a national of one Member State in another Member State on a stable and continuous basis from a principal or secondary establishment in the latter Member State and within the chapter of the Treaty dealing with services when it is carried on by a national of one Member State who moves to another Member State in order to carry on that activity on a temporary basis (see, to that effect, Case C-55/94 Gebhard, [1995] ECR I-4165, paragraphs 25 and 26).
22 Articles 52 and 59 of the Treaty require the elimination of restrictions on freedom of establishment and freedom to provide services respectively. All measures which prohibit, impede or render less attractive the exercise of such freedoms must be regarded as constituting such restrictions (see, to that effect, with regard to freedom of establishment, Case C-168/91 Konstantinidis [1993] ECR I-1191, paragraph 15, and with regard to freedom to provide services Case C-205/99 Analir and Others [2001] ECR I-1271, paragraph 21).
23 It is clear from settled case-law, however, that where such measures apply to any person or undertaking carrying on an activity in the territory of the host Member State, they may be justified where they serve overriding requirements relating to the public interest, are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it (see, to that effect, Gebhard, paragraph 37, and Analir, paragraph 25).
26 According to settled case-law, national legislation which makes the provision of certain services on national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitutes a restriction on the freedom to provide services within the meaning of Article 59 of the Treaty (see, inter alia, Case C-355/98 Commission v Belgium [2000] ECR I-1221, paragraph 35).
30 As regards the requirement that a trade-fair organiser must have a permanent national or local headquarters, it must be observed that if the requirement of authorisation constitutes a restriction on the freedom to provide services, the requirement of a permanent establishment is the very negation of that freedom. It makes a dead letter of Article 59 of the Treaty, a provision whose very purpose is to abolish restrictions on the freedom to provide services of persons who are not established in the State in which the service is to be provided. If such a requirement is to be accepted, it must be shown that it constitutes a condition which is indispensable for attaining the objective pursued (see, inter alia, Case C-222/95 Parodi [1997] ECR I-3899, paragraph 31).
32 The requirement that a trade-fair organiser must have a particular legal form or status, the requirement that he conduct his business of trade-fair organiser on an exclusive basis and the prohibition of pursuing profit also constitute significant restrictions on the freedom to provide services. It is difficult to envisage reasons in the public interest which might justify such restrictions. Moreover, since no reason has been put forward by the Italian Government, the first charge must be considered well founded in so far as it relates to the regional and provincial provisions mentioned in the third to fifth indents of paragraph 25 of this judgment, with the exception, however, of Article 19, first paragraph, of Provincial Law No 35/78 of Trento. The Commission has not succeeded in showing that that provision, allowing for the grant of subsidies to certain operators in the trade-fair sector, undermines the freedom to provide services.
39 As regards, finally, the provisions which make the organisation of trade fairs subject to the involvement of bodies made up of operators already in the territory concerned or representatives of such operators for the purposes of recognition and approval of the organiser and granting public financing to the latter, it must be observed that the requirement of approval or official recognition constitutes a restriction on the freedom to provide services or freedom of establishment. Similarly, and for the reasons given by the Advocate General in point 165 of his Opinion, an adverse effect of that kind may derive from provisions requiring the involvement of bodies made up of competing operators already present in the territory concerned.