Grupo Itevelesa SL and Others v Oca Inspección Técnica de Vehículos SA and Generalidad de Cataluña.
Date: 2015-10-15
31. That court also questions the relationship between that directive and Directive 2009/40 for the purpose of determining whether access to the roadworthiness testing activities may be subject to an authorisation scheme. In this regard, it refers to the judgment in Commission  v Portugal  (C‑438/08, EU:C:2009:651), in which the Court held that Directive 2009/40 did not contain any provisions relating to access to roadworthiness testing activities.
33. It is on that basis that the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Does Article 2(2)(d) of the Services Directive exclude vehicle roadworthiness tests from the scope of the directive where national legislation provides that these are to be carried out by private commercial entities under the supervision of the authorities of a Member State?
(2) If the previous question is answered in the negative (and vehicle roadworthiness tests do, in principle, fall within the scope of the Services Directive), are the grounds for exclusion referred to in Article 2(2)(i) of that directive applicable due to the fact that the private entities providing the service are empowered, as a precautionary measure, to order that vehicles found to have safety defects such that they would represent an imminent danger if driven, should be taken off the road?
(3) If the Services Directive applies to vehicle roadworthiness tests, does that directive, when interpreted in conjunction with Article 2 of Directive 2009/40, mean that it is permissible to make such activities subject to prior administrative authorisation in every case? Does what is said in paragraph 26 of the judgment in Commission  v Portugal  (C‑438/08, EU:C:2009:651) have any bearing on the reply to this question?
(4) Is it compatible with Articles 10 and 14 of the Services Directive or, if that directive is not applicable, Article 49 TFEU, for national legislation to make the number of licences for roadworthiness testing centres subject to a local plan which justifies the quantitative restriction on the grounds of ensuring adequate local coverage, ensuring the quality of the service and encouraging competition between operators and, to that end, includes factors relating to economic planning?’
Consideration of the questions referred
The jurisdiction of the Court
35. In that regard, it should be recalled that national legislation such as that at issue in the main proceedings — which, according to its wording, applies indiscriminately to Spanish nationals and to nationals of other Member States — is, generally, capable of falling within the scope of the provisions relating to the fundamental freedoms established by the TFEU only to the extent to which it applies to situations connected with trade between the Member States (see, to that effect, judgment in Sokoll-Seebacher , C‑367/12, EU:C:2014:68, paragraph 10 and the case-law cited).
41. In the first place, with regard to the wording of Article 2(2)(d) of the Services Directive, it should be noted that the terms used by that provision in all of its language versions, with the exception of that in German, namely ‘services in the field of transport’, have a wider scope than that of the expression ‘transport services’, as it is used in recital 21 in the preamble to that directive to designate ‘urban transport, taxis and ambulances as well as port services’.
42. It should be noted, in regard to this linguistic divergence, that, according to settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. The provisions of EU law must be interpreted and applied in a uniform manner, in the light of the versions established in all the languages of the European Union. Where there is a divergence between the various language versions of a provision of EU law, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (see judgment in Kurcums Metal , C‑558/11, EU:C:2012:721, paragraph 48 and the case-law cited).
45. The use of the terms ‘services in the field of transport’ thus demonstrates the intention of the EU legislature not to restrict the exclusion set out in Article 2(2)(d) of the Services Directive merely to means of transport in themselves.
46. It is therefore necessary to interpret that exclusion as covering, as the Advocate General has stated in point 28 of his Opinion, not only any physical act of moving persons or goods from one place to another by means of a vehicle, aircraft or waterborne vessel, but also any service inherently linked to such an act.
47. Roadworthiness tests for motor vehicles are, admittedly, ancillary to the transport service. However, such tests take place as a pre-condition, indispensable to the exercise of the main activity of transport, as is clear from the road-safety objective underlying roadworthiness tests for motor vehicles.
48. It should be noted, in the second place, that that interpretation is supported by the purpose of Directive 2009/40 on roadworthiness tests for motor vehicles which, even though, as was held by the Court in the judgment in Commission  v Portugal (C‑438/08, EU:C:2009:651, paragraph 26), it does not contain any provisions on the rules relating to access to the activity of roadworthiness testing, governs the contents of that activity and seeks expressly, as is stated in recital 2 in the preamble thereto, to guarantee road safety. Such a purpose also follows explicitly from recitals 3 and 43 in the preamble to Directive 2014/45, which succeeded Directive 2009/40.
53. In those circumstances, the national legislation at issue in the main proceedings has to be assessed in the light of the provisions of the TFEU on freedom of establishment, which are applicable directly to transport, and not on the basis of the Title of that Treaty concerning transport (see, to that effect, judgment in Yellow Cab Verkehrsbetrieb , C‑338/09, EU:C:2010:814, paragraph 33).
56. It should be noted at the outset that the Court has already held, with regard to the activities of vehicle inspection centres carried out by private bodies in Portugal, that the decision whether or not to certify roadworthiness lacked the decision-making independence inherent in the exercise of public authority powers and was taken in the context of State supervision (see judgment in Commission  v Portugal , C‑438/08, EU:C:2009:651, paragraph 41). Moreover, the Court has held that those bodies do not, in connection with their activities, have any power of coercion, as the right to impose penalties for failure to comply with the rules on vehicle inspection belongs to the police and judicial authorities (see judgment in Commission  v Portugal , C‑438/08, EU:C:2009:651, paragraph 44).
63. In the first place, with regard to the obligation to obtain prior administrative authorisation in order to carry out vehicle inspection activities, the Court has already had occasion to point out that Directive 2009/40 does not contain any provision concerning the conditions governing access to that activity (see, to that effect, judgment in Commission  v Portugal , C‑438/08, EU:C:2009:651, paragraph 26).
64. In the absence of harmonisation in that regard, the Member States remain competent to define such conditions but are, however, required to exercise their powers in this area in a manner which respects the basic freedoms guaranteed by the TFEU (see, to that effect, judgment in Nasiopoulos , C‑575/11, EU:C:2013:430, paragraph 20 and the case-law cited).
67. In should be noted that, according to the Court’s settled case-law, Article 49 TFEU precludes restrictions on the freedom of establishment, that is to say, any national measure which is liable to hinder or render less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the TFEU. The notion of restriction covers measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder trade within the EU (see, to that effect, judgment in SOA Nazionale Costruttori , C‑327/12, EU:C:2013:827, paragraph 45 and the case-law cited).
72. In accordance with the Court’s settled case-law, restrictions on the freedom of establishment which are applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective (see, to that effect, judgment in Ottica New Line di Accardi Vincenzo , C‑539/11, EU:C:2013:591, paragraph 33 and the case-law cited).
74. With regard, secondly, to the objectives pursued by that legislation, the Autonomous Government of Catalonia and the Spanish Government contend that that legislation, by allowing an appropriate territorial cover, by guaranteeing the quality of the service and by promoting competition, seeks, as is expressly clear from the preamble to Decree 45/2010, both to protect consumers and to ensure road safety. According to the Court’s settled case-law, both consumer protection (see, to that effect, judgments in Attanasio Group , C‑384/08, EU:C:2010:133, paragraph 50, and in Essent and Others , C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 58) and the need to ensure road safety (judgment in Commission  v Portugal , C‑438/08, EU:C:2009:651, paragraph 48 and the case-law cited) constitute overriding reasons in the public interest which are capable of justifying restrictions on freedom of establishment.
76. It is necessary in particular to be satisfied that the way in which the national legislation at issue in the main proceedings pursues those objectives is coherent. According to the Court’s case-law, the national legislation as a whole and the various relevant rules will be appropriate for ensuring attainment of the objective relied upon only if they genuinely reflect a concern to attain that objective in a consistent and systematic manner (see, to that effect, judgment in Ottica New Line di Accardi Vincenzo , C‑539/11, EU:C:2013:591, paragraph 47 and the case-law cited).
77. In that regard, it is ultimately for the referring court, which alone has jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent such legislation satisfies those conditions. The Court, however, which is called on to provide answers of use to the referring court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the referring court to give judgment (judgment in Sokoll-Seebacher , C‑367/12, EU:C:2014:68, paragraph 40 and the case-law cited).