Commission of the European Communities v Italian Republic.
Date: 2007-07-18
23. It must be stated, first of all, that it is clear from settled case-law that national legislation which makes the provision of services on national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitutes a restriction on the freedom to provide services within the terms of Article 49 EC (see, inter alia, Case C-189/03 Commission  v Netherlands  [2004] ECR I-9289, paragraph 17, and Case C-168/04 Commission  v Austria [2006] ECR I-9041, paragraph 40).
25. In that connection, it should be recalled that the Court has ruled that, by excluding consideration of the obligations to which the trans-frontier service provider is already subject in the Member State in which it is established, a national law goes beyond what is necessary to attain the objectives sought, namely to ensure close supervision of those activities (Case C-171/02 Commission  v Portugal  [2004] ECR I-5645, paragraph 60, and Commission  v Netherlands , paragraph 18).
43. It must be observed, at the outset, that it is settled case-law that the requirement that a service provider must have its place of business in the Member State in which the service is provided directly negates the freedom to provide services in so far as it makes it impossible for service providers established in other Member States to provide services in that State (Case C-257/05 Commission  v Austria , not published in the ECR, paragraph 21 and the case-law cited). The Italian Republic also does not deny that the obligation to have premises in the territory covered by the licence constitutes an obstacle, prohibited in principle, to the free provision of services guaranteed by Article 49 EC.
58. Inasmuch as those rules require an operator from another Member State wishing to pursue its activities in several Italian provinces not to confine itself to one single establishment in Italian territory, but on the contrary require it to have premises in each of those provinces unless authority is conferred on an authorised agent, they place that operator at a disadvantage as compared with Italian operators established in Italy which already have premises in at least one of those provinces and generally have better opportunities than foreign operators to establish contacts with authorised operators in other provinces in order to issue, where necessary, powers of agency (see, to that effect, Case C‑442/02 CaixaBank France  [2004] ECR I‑8961, paragraphs 12 and 13).
59. With regard to the grounds put forward by the Italian Republic in justification of that obstacle to the freedoms guaranteed by Articles 43 EC and 49 EC, it must be stated first of all that neither the territorial limitation of the licence nor the obligation to have premises in the province for which the licence has been granted can a priori be considered to be inappropriate for attaining the objective of effective supervision of the activities concerned which is assigned to them.
63. In so far as the Italian Republic contends that the recognition by the competent authorities in one province of a licence issued in another is hampered by the fact that the issue of such a licence also depends on the assessment of local economic conditions by the Questore in each province, suffice it to recall that, in accordance with established case-law, any system of prior authorisation must be based on objective criteria which are non-discriminatory and known in advance by the persons concerned (Case C-463/00 Commission  v Spain  [2003] ECR I‑4581, paragraph 69 and the case-law cited, and Case C-372/04 Watts  [2006] ECR I‑4325, paragraph 116). Since such an assessment lacks objective criteria which are known in advance by the undertakings concerned, that argument cannot justify the non-recognition by the Questore in one province of a licence issued by the Questore in another.
70. According to settled case-law, 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 Joined Cases C-544/03 and C-545/03 Mobistar and Belgacom Mobile  [2005] ECR I‑7723, paragraph 30 and the case-law cited).
71. Therefore, as regards compulsory minimum rates, the Court has already held that legislation containing an absolute prohibition of derogation, by agreement, from the minimum fees set by a scale for services which are, on the one hand, court services and, on the other, reserved to lawyers constitutes a restriction on the freedom to provide services laid down in Article 49 EC (Joined Cases C-94/04 and C-202/04 Cipolla and Others  [2006] ECR I-11421, paragraph 70).
72. A prohibition of that nature deprives economic operators established in another Member State of the opportunity to compete more effectively, by offering charges lower than those in the scale of charges imposed, with the economic operators traditionally established in the Member State concerned, which therefore have greater opportunities than economic operators established abroad to build up their clientele (see, to that effect, Cipolla and Others , paragraph 59, see also, by way of analogy, CaixaBank France , paragraph 13).
73. Likewise, such a prohibition limits the choice of recipients of the services in question in the Member State concerned, inasmuch as they cannot have recourse to the services in the Member State of foreign operators which would offer their services at a lower rate than the minimum fees set by the scale (see, to that effect, Cipolla and Others , paragraph 60).