Duomo Gpa Srl and Others v Comune di Baranzate and Comune di Venegono Inferiore.
Date: 2012-05-10
19. Therefore, even if that directive were regarded as accomplishing full harmonisation within the meaning of the Court’s case‑law, that would not preclude the relevance of primary law for the period prior to the time-limit for transposition of the directive (see, inter alia, by analogy, Case 148/78 Ratti  [1979] ECR 1629, paragraphs 36 and 42 to 44, and Case C‑350/97 Monsees  [1999] ECR I‑2921, paragraph 27).
22. To the extent that the second question, as reformulated in the previous paragraph, seeks an interpretation of Articles 3 EC, 10 EC and 81 EC, it should be recalled that the need to provide an interpretation of EU law which will be of use to the referring court requires that the referring court define the factual and legal context of its questions or, at the very least, that it explain the factual circumstances on which those questions are based. Those requirements are of particular importance in the area of competition, where the factual and legal situations are often complex (see, inter alia, Case C‑384/08 Attanasio Group [2010] ECR I‑2055, paragraph 32 and the case‑law cited).
24. In such circumstances, to the extent that the second question seeks an interpretation of Articles 3 EC, 10 EC and 81 EC, it must be declared inadmissible.
25. As regards the interpretation of Articles 43 EC and 49 EC, it is apparent from the documents before the Court that all the facts in the main proceedings are confined within a single Member State. In those circumstances, it is necessary to ascertain whether the Court has jurisdiction in the present cases to give a ruling on those provisions (see, by analogy, Case C‑380/05 Centro Europa 7  [2008] ECR I‑349, paragraph 64, and Case C‑245/09 Omalet  [2010] ECR I‑13771, paragraphs 9 and 10).
26. National legislation such as that at issue in the main proceedings which, as worded, applies to Italian operators and to operators of other Member States alike is, generally, capable of falling within the scope of the provisions on the fundamental freedoms established by the Treaty only to the extent that it applies to situations connected with trade between Member States (see Case C‑448/98 Guimont [2000] ECR I‑10663, paragraph 21; Case C‑6/01 Anomar and Others  [2003] ECR I‑8621, paragraph 39 and the case‑law cited; Centro Europa 7 , paragraph 65, and Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez [2010] ECR I‑4629, paragraph 40).
28. Furthermore, the interpretation of Articles 43 EC and 49 EC sought by the referring court may be useful to it if its national law were to require it to grant an Italian operator the same rights as those which an operator of another Member State would derive from EU law in the same situation (see, by analogy, Centro Europa 7 , paragraph 69 and the case‑law cited, as well as Blanco Pérez and Chao Gómez , paragraph 39). In that regard, it should be observed that the referring court states in the orders for reference, as the reason why it considers it necessary to refer the questions for a preliminary ruling, that the lawfulness of the legislation at issue in the main proceedings depends on the interpretation by the Court of Articles 43 EC and 49 EC.
30. As regards the definition of the respective scope of the principles of freedom to provide services and freedom of establishment, it is necessary to establish whether or not the economic operator is established in the Member State in which it offers the services in question (see, to that effect, Case C‑55/94 Gebhard  [1995] ECR I‑4165, paragraph 22). Where that operator is established in the Member State in which it offers the service, it falls within the scope of the principle of freedom of establishment, as defined in Article 43 EC. On the other hand, where the economic operator is not established in the Member State of destination, it is a transfrontier service provider covered by the principle of freedom to provide services laid down in Article 49 EC (see Case C‑171/02 Commission v Portugal  [2004] ECR I‑5645, paragraph 24).
31. In that context, the concept of establishment means that the operator offers its services on a stable and continuous basis from an establishment in the Member State of destination. On the other hand, every provision of services that are not offered on a stable and continuous basis from an establishment in the Member State of destination constitutes a ‘provision of services’ within the meaning of Article 49 EC (see Commission v Portugal , paragraph 25 and the case‑law cited).
32. It also emerges from the case‑law, that no provision of the EC Treaty affords a means of determining, in an abstract manner, the duration or frequency beyond which the supply of a service or of a certain type of service can no longer be regarded as the provision of services, and accordingly ‘services’ within the meaning of the Treaty may cover services varying widely in nature, including services which are provided over an extended period, even over several years (see Case C‑215/01 Schnitzer [2003] ECR I‑14847, paragraphs 30 and 31; Commission v Portugal , paragraph 26; Case C‑208/07 von Chamier-Glisczinski  [2009] ECR I‑6095, paragraph 74, and Case C‑97/09 Schmelz  [2010] ECR I‑10465, paragraph 42).
35. In that regard, according to the case‑law, Article 43 EC precludes any national measure which, even if applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the freedom of establishment guaranteed by the Treaty, and such restrictive effects may arise where, on account of national legislation, a company may be deterred from setting up subsidiary entities, such as permanent establishments, in other Member States and from carrying on its activities through such entities (see, inter alia, Attanasio Group , paragraphs 43 and 44 and the case‑law cited, and Case C‑148/10 DHL International  [2011] ECR I‑9543, paragraph 60).
36. It is settled case‑law that Article 49 EC requires not only the elimination of all discrimination against service providers established in another Member State on the ground of their nationality 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, when it is liable to prohibit, impede or render less attractive the activities of a service provider established in another Member State where it lawfully provides similar services (see, inter alia, Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 12 and Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others  [2011] ECR I‑9083, paragraph 85). In the same vein, the Court has also held that Article 49 EC precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within a Member State (see, inter alia, Case C‑381/93 Commission v France [1994] ECR I‑5145, paragraph 17, and C‑250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraph 30 and the case‑law cited).
38. Such an obligation amounts to a restriction on the freedom of establishment and the freedom to provide services. First, it contains a condition of minimum share capital (see, inter alia, by analogy, Commission v Portugal , paragraphs 53 and 54, and Case C‑514/03 Commission v Spain  [2006] ECR I‑963, paragraph 36) and, second, as the Netherlands Government observed, it forces private operators wishing to pursue the activities at issue in the main proceedings to incorporate (see, by analogy, Commission v Portugal , paragraphs 41 and 42, and Commission v Spain , paragraph 31). Thus, a provision such as that at issue in the main proceedings impedes or renders less attractive, within the meaning of the case‑law set out at paragraphs 35 and 36 of this judgment, the freedom of establishment and the freedom to provide services laid down in Articles 43 EC and 49 EC respectively.
39. Accordingly, it should be examined to what extent the provision at issue in the main proceedings can be permitted by virtue of one of the reasons set out in Article 46 EC or justified, in accordance with the case‑law of the Court, by overriding reasons in the public interest (see, inter alia, by analogy, Case C‑167/01 Inspire Art [2003] ECR I‑10155, paragraph 107, and Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I‑7633, paragraph 55).
42. In that regard, even admitting that the objective outlined at paragraph 40 of this judgment may be regarded as an overriding reason in the public interest and not a reason of a purely economic nature (see, in that regard, Case C‑109/04 Kranemann  [2005] ECR I‑2421, paragraph 34 and the case‑law cited, as well as judgment of 16 February 2012 in Joined Cases C‑72/10 and C‑77/101 Costa and Cifone , paragraph 59), it should be noted that, according to settled case‑law a restriction of the fundamental freedoms enshrined in the Treaty may be justified only if the relevant measure is appropriate for ensuring the attainment of the objective in question and does not go beyond what is necessary to attain that objective ( Attanasio Group , paragraph 51 and the case‑law cited). Furthermore, national legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, inter alia, Case C‑169/07 Hartlauer  [2009] ECR I‑1721, paragraph 55, and Attanasio Group , paragraph 51).