Gebhart Hiebler v Walter Schlagbauer.
Date: 2015-12-23
33. Having regard to that case-law, it should be noted at the outset that, as an exception to a fundamental freedom, the derogation in Article 2(2)(i) of Directive 2006/123 must be interpreted in a manner which limits its scope to what is strictly necessary to safeguard the interests it allows the Member States to protect (see, by analogy, judgment in Commission  v Belgium , C‑47/08, EU:C:2011:334, paragraph 84 and the case-law cited) and must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (see, by analogy, judgments in Commission v Belgium , C‑47/08, EU:C:2011:334, paragraph 85, and SOA Nazionale Costruttori , C‑327/12, EU:C:2013:827, paragraph 51).
34. It is also the Court’s settled case-law that activities that are auxiliary or preparatory to the exercise of official authority must be regarded as falling outside the scope of that derogation (see, by analogy, judgment in Commission  v Germany , C‑404/05, EU:C:2007:723, paragraph 44) as they do not entail the exercise of independent decision-making powers pursued in the context of direct State supervision (see, by analogy, judgments in Commission v Portugal , C‑438/08, EU:C:2009:651, paragraphs 36 and 41, and SOA Nazionale Costruttori , C‑327/12, EU:C:2013:827, paragraph 53), and do not entail the exercise of powers of constraint (see, by analogy, judgment in Commission v Spain , C‑114/97, EU:C:1998:519, paragraph 37) or powers of coercion (see, by analogy, judgments in Anker and Others , C‑47/02, EU:C:2003:516, paragraph 61, and Commission  v Portugal , C‑438/08, EU:C:2009:651, paragraph 44).
41. In that regard, it should be noted that, as is apparent from the documents before the Court, fire safety regulation activities are performed by chimney sweeps in the Land of Corinthia, in accordance with recital 70 in the preamble to Directive 2006/123 and the Court’s case-law, by way of special task in the public interest entrusted to them by means of an authorisation, namely a licence to trade, and pursuant to a regulatory provision, namely Paragraph 26 of the fire safety regulations, which define in a clear and transparent fashion the precise nature of the public service obligation imposed (see, by analogy, judgments in Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraph 37, and Femarbel , C‑57/12, EU:C:2013:517, paragraph 48).
42. Moreover, it would also appear from the documents before the Court that, in accordance with Article 14 TFEU, Article 1 of Protocol (No 26) on services of general interest annexed to the FEU Treaty, and the Court’s established case-law, licensed chimney sweeps in the Land of Corinthia are required to perform, in accordance with that public service obligation, fire safety regulation tasks for the benefit of all users in the area allocated to them, in such a way as to ensure equality of access to services, charging uniform tariff rates, the maximum amount of which is set by order of the governor of that Land (see, by analogy, judgments in Fallimento Traghetti del Mediterraneo , C‑140/09, EU:C:2010:335, paragraph 38, and Femarbel , C‑57/12, EU:C:2013:517, paragraph 47), and ensuring similar quality conditions, irrespective of the specific situations or the degree of economic profitability of each individual operation (see, to that effect, judgment in Corbeau , C‑320/91, EU:C:1993:198, paragraph 15).
43. None the less, in spite of the fact that those tasks might be classified as tasks connected with a service of general economic interest, which it is for the national court to determine, they fall within the scope of Directive 2006/123.
44. Indeed, as the Advocate General observed at point 37 of his Opinion, it is made expressly clear in Article 2(2)(a) of Directive 2006/123, in conjunction with recitals 17, 70 and 72 in the preamble thereto, that the rules laid down by the directive are applicable, in principle, to all services of general economic interest, only non-economic services of general interest being excluded from the scope of those rules.
51. Second, Article 15(2)(a) of Directive 2006/123 expressly classifies ‘territorial restrictions’ on the pursuit of a service activity as ‘requirements’ within the meaning of Article 4(7) of the directive, which are conditions affecting the freedom of establishment of service providers.
54. Second, it should be noted that, as it includes territorial restrictions on the pursuit of a service activity on the list of requirements subject to evaluation set out in paragraph 2 thereof, Article 15 of Directive 2006/123 also authorises Member States, under paragraph 1, to maintain or, if necessary, introduce such restrictions in their legal systems, on condition that those restrictions satisfy the conditions of non-discrimination, necessity and proportionality laid down in Article 15(3) (see, to that effect, judgment in Rina Services and Others , C‑593/13, EU:C:2015:399, paragraphs 32 and 33).
55. It follows from the foregoing considerations that, as stated by the Commission in its written observations, Articles 10(4) and 15(3) of Directive 2006/123 both provide for the possibility of justifying a restriction on freedom of establishment, such as the territorial restriction at issue in the main proceedings, and require, for that purpose, compliance with the same conditions, designed to ensure that the restriction (i) does not discriminate on grounds of nationality, (ii) is justified by an overriding reason relating to the public interest and (iii) is suitab le for securing the attainment of the objective pursued, does not go beyond what is necessary to attain that objective and may not be replaced by other, less restrictive measures which attain the same result.
58. As such objectives form part of public health protection, which, as is clear from Article 4(8) of Directive 2006/123 and the Court’s established case-law, is one of the overriding reasons relating to the public interest that may justify restrictions on freedom of establishment (see, to that effect, judgment in Ottica New Line di Accardi Vincenzo , C‑539/11, EU:C:2013:591, paragraph 34 and the case-law cited), it must be concluded that the requirement that the territorial restriction at issue in the main proceedings should be necessary is also fulfilled.
60. According to the Court’s case-law, health care establishments and infrastructure, pharmacies and opticians’ shops may be subject to planning, so as to ensure the provision of public health care which is adapted to the needs of the population, covers the entire territory and takes account of geographically isolated or otherwise disadvantaged regions (see, to that effect, judgments in Hartlauer , C‑169/07, EU:C:2009:141, paragraphs 51 and 52; Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 70, and Ottica New Line di Accardi Vincenzo , C‑539/11, EU:C:2013:591, paragraphs 36 and 37).
62. It is clear from the observations of the Austrian Government that there exist in the Länder, such as the Land of Corinthia, agglomerations which may be perceived by chimney sweeps to be more profitable and, therefore, more attractive, such as those located in urban areas. Conversely, other parts of national territory may be considered less attractive, such as geographically isolated or otherwise disadvantaged areas (see, by analogy, judgment in Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 72).
63. It is not inconceivable that, if no territorial restriction were imposed, chimney sweeps would decide to pursue their trade only in areas considered to be attractive, thus benefitting only a limited part of the population, so that the inhabitants of less attractive areas would not have sufficient providers willing to offer a chimney sweeping service which is reliable and of good quality (see, by analogy, judgment in Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 73).
65. While it is apparent from the above that such legislation is generally capable of attaining the objective of public health protection, it is also essential that that legislation pursues that objective consistently. According to the Court’s case-law, national legislation is appropriate for ensuring attainment of the objective relied upon only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (see, to that effect, judgments in Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 94; Ottica New Line di Accardi Vincenzo , C‑539/11, EU:C:2013:591, paragraph 47; and Sokoll-Seebacher , C‑367/12, EU:C:2014:68, paragraph 39).
66. In that regard, although it is ultimately for the national court to determine whether, and to what extent, Paragraph 123 GewO fulfils that condition, the Court may provide guidance based on the documents relating to the main proceedings and on the written and oral observations submitted to it, in order to enable that court to give judgment (see judgment in Grupo Itevelesa and Others , C‑168/14, EU:C:2015:685, paragraph 77 and the case-law cited).
69. Accordingly, there is a risk that, when implemented, Article 123 GewO will not ensure a balanced allocation of private economic activities among chimney sweeps within the territory in question and, therefore, an equal level of protection of public health throughout that territory (see, by analogy, judgment in Ottica New Line di Accardi Vincenzo , C‑539/11, EU:C:2013:591, paragraph 54).
74. As the Court’s case-law on Treaty competition rules makes clear, in order to carry out the assessment alluded to in the preceding paragraph, the starting point must undoubtedly be the premiss that the obligation, on the part of the persons entrusted with a task in the general economic interest to perform their services in conditions of economic equilibrium presupposes that it will be possible to offset less profitable sectors against the profitable sectors and hence a restriction on freedom of establishment in economically profitable sectors may be justified (see, by analogy, judgments in Corbeau , C‑320/91, EU:C:1993:198, paragraphs 16 and 17, and Ambulanz Glöckner , C‑475/99, EU:C:2001:577, paragraph 57).
75. None the less, it must also be borne in mind that such a restriction may not be justified as regards specific services, severable from the service of general economic interest in question, if those services, by their nature and the conditions under which they are offered, do not compromise the economic equilibrium of the service of general economic interest (see, by analogy, judgments in Corbeau , C‑320/91, EU:C:1993:198, paragraph 19, and Ambulanz Glöckner , C‑475/99, EU:C:2001:577, paragraph 59).