Josef Corsten.
Date: 2000-10-03
16 As part of a construction project, Mr Corsten, a self-employed architect, contracted with an undertaking established in the Netherlands to lay composition floors in Germany. The undertaking entrusted with the work lawfully carried out such work in the Netherlands but was not entered on the Skilled Trades Register in Germany. The undertaking charged a price per square metre for laying composition floors that was considerably lower than the price that would have been charged by German skilled trade undertakings for the same work.
24 The Court would point out, first of all, that it has no jurisdiction to decide whether the interpretation given by the national court of provisions of national law is correct or to give a ruling on the conformity of those provisions with Community law. It is the task of the Court solely to interpret provisions of Community law in order to give the national court all the guidance on matters of Community law that it needs in order to decide the case before it.
30 On that point, it must be borne in mind that Directive 64/427 was intended to make it easier to attain freedom of establishment and freedom to provide services in a broad range of industrial and small trade activities in the manufacturing and processing industries, pending harmonisation of conditions for taking up those activities in the different Member States, which is an essential prerequisite for complete liberalisation in that field (Joined Cases C-193/97 and C-194/97 De Castro Freitas and Escallier [1998] ECR I-6747, paragraph 19).
31 Although in the absence of such harmonisation with regard to the activities at issue in the main proceedings the Member States retain, in principle, the power to define the conditions governing access to such activities, they must none the less, when exercising their powers in this area, respect both the basic freedoms guaranteed by Article 52 of the EC Treaty (now, after amendment, Article 43 EC) and Article 59 of the Treaty and the effectiveness of a directive laying down transitional measures (De Castro Freitas and Escallier, cited above, paragraph 23). That applies not only to the substantive conditions governing access to those activities, but also to the requirements of a procedural nature provided for by national law.
33 It is settled case-law that Article 59 of the 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 Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221, paragraph 12; Case C-43/93 Vander Elst v Office des Migrations Internationales [1994] ECR I-3803, paragraph 14; Case C-272/94 Guiot [1996] ECR I-1905, paragraph 10; Case C-3/95 Reisebüro Broede v Sandker [1996] ECR I-6511, paragraph 25; Case C-222/95 Parodi v Banque H. Albert de Bary [1997] ECR I-3899, paragraph 18; and Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-8453, paragraph 33).
34 In that respect, the requirement imposed on an undertaking established in one Member State which wishes, as a provider of a service, to carry on a skilled trade activity in another Member State to be entered on the latter's trades register constitutes a restriction within the meaning of Article 59 of the Treaty.
35 It is also settled case-law that, 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, in particular, Case 279/80 Webb [1981] ECR 3305, paragraph 17; Case C-180/89 Commission v Italy [1991] ECR I-709, paragraph 17; Case C-198/89 Commission v Greece [1991] ECR I-727, paragraph 18; Säger, cited above, paragraph 15; Vander Elst, cited above, paragraph 16; Guiot, cited above, paragraph 11; and Arblade, cited above, paragraph 34).
38 It must be acknowledged, as the Commission pointed out, that the objective of guaranteeing the quality of skilled trade work and of protecting those who have commissioned such work is an overriding requirement relating to the public interest capable of justifying a restriction on freedom to provide services.
39 However, in accordance with the principle of proportionality, the application of national rules to providers of services established in other Member States must be appropriate for securing attainment of the objective which they pursue and must not go beyond what is necessary in order to attain it (see, in particular, Säger, cited above, paragraph 15, and Arblade, cited above, paragraph 35).
42 The reasons for the requirement of entry on the Register being purely of an administrative nature, such considerations cannot justify derogation by a Member State from the rules of Community law, especially where the derogation in question amounts to preventing or restricting the exercise of one of the fundamental freedoms of Community law (see, in particular, Case C-18/95 Terhoeve v Inspecteur van de Belastingdienst Particulieren/Ondernemingen Buitenland [1999] ECR I-345, paragraph 45, and Arblade, cited above, paragraph 37).
43 As the Austrian Government rightly noted, a Member State may not make the provision of services in its territory subject to compliance with all the conditions required for establishment and thereby deprive of all practical effectiveness the provisions of the Treaty whose object is, precisely, to guarantee the freedom to provide services (see Säger, cited above, paragraph 13).
47 In consequence, the authorisation procedure instituted by the host Member State should neither delay nor complicate exercise of the right of persons established in another Member State to provide their services on the territory of the first State where examination of the conditions governing access to the activities concerned has been carried out and it has been established that those conditions are satisfied.
48 Moreover, any requirement of entry on the trades register of the host Member State, assuming it was justified, should neither give rise to additional administrative expense nor entail compulsory payment of subscriptions to the chamber of trades.