Commission of the European Communities v Italian Republic.
Date: 2003-02-13
22.  It is clear from the Court's case-law that the   "temporary"   nature of the carrying-on of an activity in the host Member State, within the meaning of the third paragraph of Article 50 EC, must be determined in the light, not only of the duration of the provision of the service, but also of its regularity, periodical nature or continuity, and that the concept of   "establishment"   within the meaning of the Treaty allows a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin (Case C-55/94   Gebhard   [1995] ECR I-4165, paragraphs 25 and 27).
26.  Furthermore, as the Court has held on many occasions, Article 49 of the EC Treaty 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 to national providers of services and to those of other Member States alike, 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, Case C-58/98   Corsten   [2000] ECR I-7919, paragraph 33).
27.  The requirement imposed on patent agents established in a Member State other than the Italian Republic who wish to provide services in the latter State to be entered on the Italian register of patent agents constitutes a restriction within the meaning of Article 49 EC (see particularly, to that effect,   Corsten  , cited above, paragraph 34).
28.  Even if there is no harmonisation in the field, such a restriction on the fundamental principle of freedom to provide services can be based only on 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 he is established (see, among others,   Corsten  , paragraph 35).
29.  The Italian rules in question are intended to guarantee the quality of the services provided by patent agents and to protect those who have commissioned such services.  While such objectives constitute overriding requirements relating to the public interest capable of justifying a restriction on freedom to provide services, it is also necessary, in accordance with the principle of proportionality, that the application of national rules of a Member State to providers of services established in other Member States be appropriate for securing attainment of the objectives which they pursue and not go beyond what is necessary in order to attain them (see, among others, Case C-76/90   Säger   [1991] ECR I-4221, paragraphs 15 to 17, and   Corsten  , paragraphs 38 and 39).
42.  With regard to the obligation to have a residence or place of business within the meaning of Article 2 of Decree No 342/95, the requirement that a patent agent, already established and qualified in another Member State and wishing to supply services, have a residence or a place of business in the host Member State constitutes a restriction of the freedom to provide services (see particularly, to that effect, Case 252/83   Commission   v   Denmark   [1986] ECR 3713, paragraph 18).
43.  Such a requirement may be regarded as compatible with Articles 49 EC and 50 EC only if it is established that in the field of activity concerned there are imperative reasons relating to the public interest which justify the restrictions on the freedom to provide services, that the public interest is not already protected by the rules of the State of establishment and that the same result cannot be obtained by less restrictive rules (see, in particular,   Commission   v   Denmark  , cited above, paragraph 19).
46.  With regard to the condition of reciprocity also provided for by Article 2 of Decree No 342/95, where there is no indication that it does not apply to service providers established in other Member States, it is sufficient to observe that, in accordance with the Court's case-law (see   Commission   v   France  , cited above, paragraph 9; Case 325/82   Commission   v   Germany   [1984] ECR 777, paragraph 11, and   Commission   v   Italy  , cited above, paragraph 27), a Member State cannot plead failure to observe the principle of reciprocity or rely on a possible infringement of the Treaty by another Member State to justify its own default.