European Commission v Portuguese Republic.
Date: 2010-11-18
42. As regards the first plea of inadmissibility, it is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity to comply with its obligations under European Union law, on the one hand, and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission. The proper conduct of that procedure constitutes an essential guarantee required by the EC Treaty not only in order to protect the rights of the Member State concerned, but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see, in particular, Case C‑274/07 Commission  v Lithuania  [2008] ECR I‑7117, paragraphs 20 and 21 and the case-law cited).
43. It follows that the subject-matter of the proceedings under Article 226 EC is delimited by the pre-litigation procedure provided for in that provision. Accordingly, the application must be based on the same grounds and pleas as the reasoned opinion (see Case C‑287/00 Commission  v Germany  [2002] ECR I‑5811, paragraph 18; Case C‑305/03 Commission  v United Kingdom  [2006] ECR I‑1213, paragraph 22; and Commission  v Lithuania , paragraph 22).
44. However, that requirement cannot be stretched so far as to mean that in every case the formal statement of objections set out in the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings as defined in the reasoned opinion has not been extended or altered (see Case C‑433/03 Commission  v Germany  [2005] ECR I‑6985, paragraph 28; Case C‑484/04 Commission  v United Kingdom  [2006] ECR I‑7471, paragraph 25; and Case C‑171/08 Commission  v Portugal  [2010] ECR I‑0000, paragraph 26).
47. Therefore, the fact that, in its application, the Commission set out in detail the arguments supporting its conclusion as to the alleged failure to fulfil obligations, arguments which had already been put forward in more general terms in the letter of formal notice and the reasoned opinion, and merely explained further why it takes the view that that scheme is incompatible with the freedom to provide services, did not alter the subject of that infringement and has thus had no effect on the scope of the proceedings (see, to that effect, Case C‑185/00 Commission  v Finland  [2003] ECR I‑14189, paragraphs 84 to 87, and Commission  v Portugal , paragraph 29).
49. As regards the second plea of inadmissibility, it should be recalled that Article 38(1)(c) of the Rules of Procedure of the Court provides that any application initiating proceedings must contain, in particular, the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. It is therefore the task of the Commission, in any application made pursuant to Article 226 EC, to indicate the complaints being made in a sufficiently precise and coherent manner, so as to enable the Member State to prepare its defence and the Court to verify the existence of the failure to fulfil obligations which is being claimed (see, in particular, Case C‑98/04 Commission  v United Kingdom  [2006] ECR I‑4003, paragraph 18, and Case C‑540/07 Commission  v Italy  [2009] ECR I‑10983, paragraph 17).
51. Inasmuch as the Portuguese Republic criticises the Commission for failing to indicate how that scheme ought, in its opinion, to be changed, suffice it to note that, according to settled case-law, the Commission cannot be required to indicate in the reasoned opinion or in the application submitted to the Court what steps should be taken to eliminate the impugned conduct (see Case C‑247/89 Commission  v Portugal  [1991] ECR I‑3659, paragraph 22, and in Case C‑559/07 Commission  v Greece [2009] ECR I‑47, paragraph 23).
54. As to the third plea of inadmissibility, it should be borne in mind that, in proceedings under Article 226 EC for failure to fulfil obligations, it is for the Commission, which is responsible for proving the existence of the alleged infringement, to provide the Court with the information necessary for it to determine whether that infringement is made out, and the Commission may not rely on any presumption for that purpose (see, in particular, Case C‑434/01 Commission  v United Kingdom  [2003] ECR I‑13239, paragraph 21, and Case C‑342/05 Commission  v Finland  [2007] ECR I‑4713, paragraph 23).
81. As a preliminary point, it must be borne in mind that it is apparent from settled case-law that 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 therefore take account of any subsequent changes (see, in particular, Case C‑433/03 Commission  v Germany , paragraph 32, and in Case C‑13/09 Commission  v Italy  [2009] ECR I‑201, paragraph 9). Furthermore, according to equally settled case-law, the Commission alone is competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State on the basis of which those proceedings should be brought (see, in particular, Case C‑471/98 Commission  v Belgium  [2002] ECR I‑9681, paragraph 39, and Case C‑199/07 Commission  v Greece  [2009] ECR I‑10669, paragraph 23).
83. As regards the compatibility with Article 49 EC of the national scheme at issue, it has consistently been held 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, in particular, Case C‑350/07 Kattner Stahlbau  [2009] ECR I‑1513, paragraph 78 and the case-law cited).
84. The Court has thus repeatedly held that 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 of the freedom to provide services (see, in particular, Säger , paragraph 14; Case C‑43/93 Vander Elst  [1994] ECR I‑3803, paragraph 15; Case C‑355/98 Commission  v Belgium  [2000] ECR I‑1221, paragraph 35; and Case C‑171/02 Commission  v Portugal  [2004] ECR I‑5645, paragraph 60).
85. Furthermore, the fact, highlighted by the Portuguese Republic, that the provision of construction services generally takes some time and that it may, as a result, prove difficult to make a distinction between those services and the situation in which the provider is actually established in the host Member State, does not in any way have the effect of automatically precluding those services from being covered by Article 49 EC. Thus, the Court has already held that Article 49 EC may also include services which are provided over an extended period, even over several years, giving, in particular, the example of services supplied in connection with the construction of a large building (see Case C‑215/01 Schnitzer  [2003] ECR I‑14847, paragraph 30).
87. As regards the argument put forward by the Portuguese Republic to the effect that the provisions relating to the freedom to provide services laid down by Directive 2006/123 do not yet apply to the present proceedings, suffice it to note that, even in the absence of measures of harmonisation, a restriction of Article 49 EC can be justified only by legislation which is based on overriding reasons in the public interest and applicable to all individuals and undertakings carrying on business in the territory of the host State, to the extent that that interest is not safeguarded by the rules to which such a service provider is subject in the Member State in which it is established and provided that that legislation is suitable for attaining the objective pursued, and does not go beyond what is necessary to attain it (see, to that effect, Case C‑58/98 Corsten  [2000] ECR I‑7919, paragraph 35; Case C‑433/04 Commission  v Belgium  [2006] ECR I‑10653, paragraph 33; and Case C‑490/04 Commission  v Germany  [2007] ECR I‑6095, paragraph 64 and the case-law cited).
89. As to whether there is any objective justification for overriding reasons in the public interest for the restriction of the freedom to provide services that arises from the national scheme at issue, which applies without distinction to any construction undertaking operating within Portuguese territory, it must be observed, first of all, that the reasons put forward by the Portuguese Republic in that regard, namely the requirement to ensure the soundness and safety of buildings and to protect the environment, the architectural heritage as well as consumers and users of buildings, indeed constitute such reasons (see also Corsten , paragraph 38, and Schnitzer , paragraph 35), and it is not necessary to determine for the purposes of the present case whether some of those reasons are, as the Portuguese Republic maintains, a matter of public policy.
100. As recalled in paragraph 87 of the present judgment, a restriction of Article 49 EC can be justified only to the extent that the public interest sought to be protected by national legislation is not safeguarded by the rules to which the service provider is subject in the Member State of establishment. The Court has thus held, in particular, that a national authorisation scheme goes beyond what is necessary where the requirements to which the issue of authorisation is subject duplicate the equivalent evidence and safeguards required in the Member State of establishment, inferring in particular an obligation on the part of the host Member State to take account of controls and verifications already carried out in the Member State of establishment (see, to that effect, Case 279/80 Webb  [1981] ECR 3305, paragraph 20; Case 205/84 Commission  v Germany  [1986] ECR 3755, paragraph 47; Case C‑355/98 Commission  v Belgium , paragraph 38; and Case C‑171/02 Commission  v Portugal , paragraphs 60 and 66).
107. In that regard, it must be borne in mind that, according to settled case-law, if a prior administrative authorisation scheme is to be justified even though it derogates from a fundamental freedom, it must be based on objective, non‑discriminatory criteria known in advance, in such a way as adequately to circumscribe the exercise of the national authorities’ discretion (see, in particular, Case C‑169/07 Hartlauer  [2009] ECR I‑1721, paragraph 64 and the case-law cited). In the particular context of the procedure for the issue of a licence or registration certificate, which depends on the assessment of a number of very specific criteria involving value judgments and for which Decree-Law No 12/2004, moreover, lays down special provisions, a rule as generalised as that to which the Portuguese Republic refers is not such as adequately to circumscribe the exercise of the national authorities’ discretion.