Alpine Investments BV v Minister van Financiën.
Date: 1995-05-10
15 The questions referred to the Court must therefore be examined solely in the light of the Treaty provisions on the freedom to provide services. It is common ground that, since they were provided for remuneration, the services provided by Alpine Investments are services covered by Article 60 of the EEC Treaty.
20 The second aspect of the question is whether Article 59 covers services which the provider offers by telephone to persons established in another Member State and which he provides without moving from the Member State in which he is established.
21 In this case, the offers of services are made by a provider established in one Member State to a potential recipient established in another Member State. It follows from the express terms of Article 59 that there is therefore a provision of services within the meaning of that provision.
22 The answer to the first question is therefore that, on a proper construction, Article 59 of the EEC Treaty covers services which the provider offers by telephone to potential recipients established in other Member States and provides without moving from the Member State in which he is established.
The second question
26 First, it must be determined whether the prohibition against telephoning potential clients in another Member State without their prior consent can constitute a restriction on freedom to provide services. The national court draws the Court' s attention to the fact that providers established in the Member States where the potential recipients reside are not necessarily subject to the same prohibition or in any event not on the same terms.
27 A prohibition such as that at issue in the main proceedings does not constitute a restriction on freedom to provide services within the meaning of Article 59 solely by virtue of the fact that other Member States apply less strict rules to providers of similar services established in their territory (see the judgment in Case C-379/92 Peralta [1994] ECR I-3453, paragraph 48).
28 However, such a prohibition deprives the operators concerned of a rapid and direct technique for marketing and for contacting potential clients in other Member States. It can therefore constitute a restriction on the freedom to provide cross-border services.
30 The first paragraph of Article 59 of the Treaty prohibits restrictions on freedom to provide services within the Community in general. Consequently, that provision covers not only restrictions laid down by the State of destination but also those laid down by the State of origin. As the Court has frequently held, 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 (see Case C-18/93 Corsica Ferries Italia v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783, paragraph 30; Peralta, cited above, paragraph 40, and Case C-381/93 Commission v France [1994] ECR I-5145, paragraph 14).
33 They submit that the prohibition at issue falls outside the scope of Article 59 of the Treaty because it is a generally applicable measure, it is not discriminatory and neither its object nor its effect is to put the national market at an advantage over providers of services from other Member States. Since it affects only the way in which the services are offered, it is analogous to the non-discriminatory measures governing selling arrangements which, according to the decision in Joined Cases C-267 and 268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 16, do not fall within the scope of Article 30 of the Treaty.
34 Those arguments cannot be accepted.
35 Although a prohibition such as the one at issue in the main proceedings is general and non-discriminatory and neither its object nor its effect is to put the national market at an advantage over providers of services from other Member States, it can none the less, as has been held above (see paragraph 28), constitute a restriction on the freedom to provide cross-border services.
36 Such a prohibition is not analogous to the legislation concerning selling arrangements held in Keck and Mithouard to fall outside the scope of Article 30 of the Treaty.
37 According to that judgment, the application to products from other Member States of national provisions restricting or prohibiting, within the Member State of importation, certain selling arrangements is not such as to hinder trade between Member States so long as, first, those provisions apply to all relevant traders operating within the national territory and, secondly, they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. The reason is that the application of such provisions is not such as to prevent access by the latter to the market of the Member State of importation or to impede such access more than it impedes access by domestic products.
38 A prohibition such as that at issue is imposed by the Member State in which the provider of services is established and affects not only offers made by him to addressees who are established in that State or move there in order to receive services but also offers made to potential recipients in another Member State. It therefore directly affects access to the market in services in the other Member States and is thus capable of hindering intra-Community trade in services.
44 Maintaining the good reputation of the national financial sector may therefore constitute an imperative reason of public interest capable of justifying restrictions on the freedom to provide financial services.
45 As for the proportionality of the restriction at issue, it is settled case-law that requirements imposed on the providers of services must be appropriate to ensure achievement of the intended aim and must not go beyond that which is necessary in order to achieve that objective (see Case C-288/89 Collectieve Antennevoorziening Gouda and Others v Commissariat voor de Media [1991] ECR I-4007, paragraph 15).
51 That point of view cannot be accepted. As the Advocate General correctly states in point 88 of his Opinion, the fact that one Member State imposes less strict rules than another Member State does not mean that the latter' s rules are disproportionate and hence incompatible with Community law.