Erich Ciola v Land Vorarlberg.
Date: 1999-04-29
11 It should be observed at the outset that, as the national court has pointed out, first, the right freely to provide services may be relied on by an undertaking as against the State in which it is established if the services are provided for persons established in another Member State (Case C-70/95 Sodemare and Others v Regione Lombardia [1997] ECR I-3395, paragraph 37) and, second, in accordance with Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 16, and Case 186/87 Cowan v Trésor Public [1989] ECR 195, paragraph 15, that right includes the freedom for recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions.
14 While the restriction of the number of moorings which may be allocated to non-resident boat-owners is not based on their nationality, and so may not be regarded as direct discrimination, it does, however, use as the distinguishing criterion their place of residence. It is settled case-law that national rules under which a distinction is drawn on the basis of residence are liable to operate mainly to the detriment of nationals of other Member States, as non-residents are in the majority of cases foreigners (see Case C-350/96 Clean Car Autoservice v Landeshauptmann von Wien [1998] ECR I-2521, paragraph 29).
16 National rules which are not applicable to services without distinction whatever the place of residence of the recipient, and which are therefore discriminatory, are compatible with Community law only if they can be brought within the scope of an express derogation, such as Article 56 of the EC Treaty (see Case 352/85 Bond van Adverteerders and Others v Netherlands State [1988] ECR 2085, paragraph 32); however, economic aims cannot constitute grounds of public policy within the meaning of that provision (Case C-288/89 Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, paragraph 11).
26 Next, since the provisions of the EC Treaty are directly applicable in the legal systems of all Member States and Community law takes precedence over national law, those provisions create rights for the persons concerned which the national authorities must observe and safeguard, and any conflicting provision of national law therefore ceases to be applicable (see Case 167/73 Commission v France [1974] ECR 359, paragraph 35).
27 Since the essential requirements of Article 59 of the Treaty became directly and unconditionally applicable at the end of the transitional period (see Case 279/80 Webb [1981] ECR 3305, paragraph 13), that provision consequently precludes the application of any conflicting measure of national law.
29 While the Court initially held that it is for the national court to refuse if necessary to apply any conflicting provision of national law (see Simmenthal, cited above, paragraph 21), it subsequently refined its case-law in two respects.
30 Thus it appears from the case-law, first, that all administrative bodies, including decentralised authorities, are subject to that obligation as to primacy, and individuals may therefore rely on such a provision of Community law against them (Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839, paragraph 32).
31 Second, provisions of national law which conflict with such a provision of Community law may be legislative or administrative (see, to that effect, Case 158/80 Rewe v Hauptzollamt Kiel [1981] ECR 1805, paragraph 43).
33 There is no reason why the legal protection which individuals derive from the direct effect of provisions of Community law and which the national courts must ensure (see Case C-213/89 R v Secretary of State for Transport ex parte Factortame and Others [1990] ECR I-2433, paragraph 19) should be refused to those individuals in cases where the dispute concerns the validity of an administrative measure. The existence of such protection cannot depend on the nature of the conflicting provision of national law.