Presidenza del Consiglio dei Ministri and Others v Rina Services SpA and Others.
Date: 2015-06-16
18. It should be pointed out that the Court has already ruled on that question, which was referred by the Consiglio di Stato, in its judgment in SOA Nazionale Costruttori  (C‑327/12, EU:C:2013:827).
19. In paragraph 52 of that judgment, the Court held that, in the light of the considerations referred to in paragraphs 28 to 35 of the judgment, to the effect, in particular, that SOAs are commercial undertakings performing their activities in conditions of competition and do not have any power to make decisions connected with the exercise of public powers, SOAs’ certification activities are not directly and specifically connected with the exercise of official authority within the meaning of Article 51 TFEU.
20. In particular, the Court stated, in paragraph 54 of that judgment, that the check, by SOAs, of the technical and financial capacity of the undertakings subject to certification, the veracity and content of the declarations, certificates and documents presented by the persons to whom the certificate is issued and compliance with the conditions relating to the personal situation of the candidate or tenderer, cannot be regarded as an activity that enjoys the decision-making autonomy inherent in the exercise of public authority powers, since that check is regulated entirely by national legislation. Furthermore, the Court noted, in the same paragraph of that judgment, that such a check is carried out under direct State supervision and is designed to facilitate the task of the contracting authorities in the field of public works contracts, its purpose being to allow those authorities to complete their tasks with precise and detailed knowledge of both the technical and financial capacity of the tenderers.
21. In the present case, the referring court does not state, in the request for a preliminary ruling, that there has been any change in the nature of the activities carried out by SOAs since the events which gave rise to the judgment in SOA Nazionale Costruttori  (C‑327/12, EU:C:2013:827).
26. Article 14 of Directive 2006/123 prohibits Member States from making access to, or the exercise of, a service activity in their territory subject to compliance with any of the requirements listed in paragraphs 1 to 8 of that provision, requiring that those requirements be removed, systematically and as a matter of priority.
28. In that respect, it should be noted, as observed by the Republic of Poland and the Commission, that no justification can be given for the requirements listed in Article 14 of Directive 2006/123, to which the national legislation at issue in the main proceedings relates.
29. This conclusion follows both from the wording of Article 14 and the general scheme of Directive 2006/123.
30. As stated in the title of that article, the requirements in paragraphs 1 to 8 are ‘prohibited’. Furthermore, there is nothing in the wording of that article to indicate that Member States have the option of justifying maintaining those requirements in their national legislation.
31. Moreover, the general scheme of Directive 2006/123 is based, with regard to freedom of establishment, on a clear distinction between prohibited requirements and those subject to evaluation. While the former are governed by Article 14 of that directive, the latter are subject to the rules laid down in Article 15.
32. As regards, in particular, requirements subject to evaluation, Member States must, in accordance with Article 15(1) of Directive 2006/123, examine whether, under their legal system, any of the requirements listed in paragraph 2 thereof are imposed and ensure that any such requirements are compatible with the conditions of non-discrimination, necessity and proportionality referred to in Article 15(3).
33. It follows from Article 15(5) and (6) of Directive 2006/123 that Member States may maintain or, if necessary, introduce requirements of the type referred to in Article 15(2), on condition that those requirements satisfy the conditions of non-discrimination, necessity and proportionality laid down in Article 15(3).
34. Furthermore, with regard to free movement of services, Article 16(3) of Directive 2006/123 provides that the Member State to which the provider moves may impose requirements with regard to the provision of a service activity, where they are justified for reasons of public policy, public security, public health or the protection of the environment and in accordance with Article 16(1).
35. No such possibility is provided for with regard to the ‘prohibited’ requirements listed in Article 14 of Directive 2006/123.
37. In this respect, it should be noted, as observed by the Republic of Poland, that an interpretation of Article 3(3) of Directive 2006/123 to the effect that Member States may justify, on the basis of primary law, a requirement prohibited by Article 14 of that directive would deprive that provision of any practical effect by ultimately undermining the ad hoc harmonisation intended by that directive.
38. That interpretation would be contrary to the conclusion drawn by the EU legislature in recital 6 in the preamble to Directive 2006/123, to the effect that barriers to freedom of establishment may not be removed solely by relying on direct application of Article 49 TFEU, owing, inter alia, to the extreme complexity of addressing barriers to that freedom on a case-by-case basis. To concede that the ‘prohibited’ requirements under Article 14 of that directive may nevertheless be justified on the basis of primary law would in fact be tantamount to reintroducing such case-by-case examination, under the FEU Treaty, for all restrictions on freedom of establishment.
39. Moreover, it should be noted that Article 3(3) of Directive 2006/123 does not prevent Article 14 of that directive from being interpreted as meaning that there can be no justification for the prohibited requirements listed in Article 14. That prohibition, with no possibility of justification, seeks to ensure the systematic and swift removal of certain restrictions on freedom of establishment, regarded by the EU legislature and the case-law of the Court as adversely affecting the proper functioning of the internal market. That aim is consistent with the FEU Treaty.
40. Accordingly, even though Article 52(1) TFEU allows Member States to justify, on any of the grounds listed in that provision, national measures constituting a restriction on the freedom of establishment, that does not prevent the EU legislature, when adopting secondary legislation, such as Directive 2006/213, giving effect to a fundamental freedom enshrined in the FEU Treaty, from restricting certain derogations, especially when, as in the present case, the relevant provision of secondary law merely reiterates settled case-law to the effect that a requirement such as that at issue in the main proceedings is incompatible with the fundamental freedoms on which economic operators can rely (see, to that effect, inter alia, judgment in Commission  v France , C‑334/94, EU:C:1996:90, paragraph 19).