1.

These three joined cases concern the compatibility with European Union law of a provision of national law by virtue of which undertakings seeking to be awarded services relating to the assessment and collection of taxes and other local authority revenue must have a fully paid-up share capital of at least EUR 10000000, failing which they will, essentially, be excluded from the relevant award procedure or, as the case may be, the award will be declared null and void.

2.

More specifically, the referring court asks whether that provision of national law is compatible with Articles 15 and 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ( 2 ) on the one hand, and with primary law on the other.

3.

The incorporation of the Directive into European Union law has raised various questions: firstly in relation to its nature as a harmonising measure, ( 3 ) but also in relation to its applicability to purely domestic cases ( 4 ) and in relation to the scope and validity of Article 16, ( 5 ) inter alia. It is not necessary in this case, however, to address all, or even most, of these issues. Specifically, when considering the hypothesis that this is a case of a supply of services to which the freedom of establishment is not applicable, I will be suggesting that on this occasion the Court of Justice dispense with the need to cover all these points and move directly to assessing the compatibility with European Union law of the provision of national law in question from the viewpoint of the principle of proportionality.

4.

Directive 2006/123, known as the Services Directive, establishes ‘provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services’ (Article 1(1)).

5.

Chapter III concerns freedom of establishment for providers. Article 15(2) provides that ‘Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance’ with a number of requirements, including ‘requirements which relate to the shareholding of a company’ (Article 15(2)(c)).

6.

Article 15(3) provides as follows:

‘Member States shall verify that requirements referred to in paragraph 2 satisfy the following conditions:

7.

Chapter IV of the Directive concerns free movement of services. Article 16, entitled ‘freedom to provide services’, falls within it and provides as follows:

‘Member States shall respect the right of providers to provide services in a Member State other than that in which they are established.

The Member State in which the service is provided shall ensure free access to and free exercise of a service activity within its territory.

Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect the following principles:

8.

Article 32(7a) of Legislative Decree No 185 of 29 November 2008, ( 6 ) converted by Law No 2 of 28 January 2009, ( 7 ) provided as follows:

‘The minimum amount of fully paid-up share capital required of companies, for the purpose of Article 53(3) of Legislative Decree No 446 of 15 December 1997, as subsequently amended, for entry in the appropriate register of undertakings authorised to carry out activities relating to the assessment and collection of taxes and other revenue of provinces and municipalities shall be fixed at an amount of no less than EUR 10000000. Companies in which a majority of the share capital is in public ownership shall be excluded from the limit referred to in the previous sentence. The award of services relating to the assessment and collection of taxes and other local government revenue to undertakings which fail to satisfy that financial requirement shall be null and void. Undertakings entered in the abovementioned register shall be required to bring their share capital up to the aforesaid minimum level. In any event, until they have done so, they may not be awarded new contracts or participate in tendering procedures initiated for that purpose.’

9.

That provision was repealed by Article 3a(3) of Legislative Decree No 40 of 25 March 2010, ( 8 ) converted by Law No 73 of 22 May 2010. ( 9 ) The new legislation requires different minimum levels of share capital depending on the number of inhabitants of the local authority in question.

10.

Cases C-357/10 and C-358/10 arise out of the announcement by the Comune di Baranzate (Municipality of Baranzate) (Italy) of an open procedure for the award of a service concession relating to the administration, assessment and collection of certain taxes and other local revenue for the five-year period between 1 May 2009 and 30 April 2014. The estimated value of the services for the whole period was EUR 57000. Six private undertakings, all established in Italy, submitted tenders. They included Duomo Gpa Srl (‘Duomo’), Gestione Servizi Pubblici Srl (‘GSP’) and Agencia Italiana per le Pubbliche Amministrazioni SpA (‘AIPA’). On 1 and 3 April 2009 the Comune di Baranzate informed Duomo and GSP that they had been excluded from the procedure due to their failure to meet the requirement specified in Article 32(7a) of Legislative Decree No 185/08.

11.

Case C-359/10 arises out of the announcement by the Comune di Venegono Inferiore of a similar procedure. This case concerned the award of a service concession relating to the assessment, collection and enforcement of local taxes on advertising and charges for public advertising displays for the four-year period from 23 February 2009 to 31 December 2012, worth an estimated EUR 48 765 in total. Irtel SpA (‘Irtel’) and AIPA were among the undertakings submitting tenders. On 9 March 2009, the contracting authority decided to exclude Irtel from the procedure due to its failure to meet the requirement specified in Article 32(7a) of Legislative Decree No 185/08.

12.

Duomo, GSP and Irtel each commenced proceedings in respect of the decisions to exclude them from the award procedures.

13.

The Tribunale Amministrativo Regionale per la Lombardia (Regional Administrative Court, Lombardy) (Italy) has stayed the relevant proceedings and referred the following questions for a preliminary ruling in relation to each of the actions:

14.

The references for preliminary rulings were lodged at the Registry of the Court of Justice on 19 July 2010.

15.

Written observations have been submitted by the Comune di Baranzate, the Italian and Netherlands Governments and the Commission.

16.

As I have already indicated, the two questions raised in these references concern the compatibility of a provision of national law, first with the freedom of establishment and the freedom to provide services according to the Services Directive, and, second, with those freedoms as they appear in the Treaty itself.

17.

Although the second question is not formally presented as subsidiary to the first, it seems reasonable to assume that it is the prospect of potential difficulties relating to the applicability of the Directive to these cases that has led the referring court to seek, in the alternative, an examination of the provision of national law by comparison with these freedoms as they appear in the Treaty itself.

18.

The first question referred relates to the compatibility with Articles 15 and 16 of the Services Directive of the Italian legislation previously referred to, by virtue of which undertakings seeking to be awarded services relating to the assessment and collection of taxes and other local authority revenue must have a fully paid-up share capital of at least EUR 10000000, failing which they will be excluded from the relevant award procedure or, as the case may be, the award will be declared null and void.

19.

Those articles of the Directive are respectively part of the differing sets of provisions governing each of the two possible ‘situations’ which may apply to the service provider: that of ‘freedom of establishment’ and that of ‘freedom to provide services’, which are each subject to somewhat different legal regulation. ( 10 ) However, before turning my attention to the question of whether one or other, or even both, articles should be seen as relevant for the present purposes, I cannot avoid addressing the issue of the applicability as such of the Directive.

20.

The applicability of the Services Directive has been called into question essentially from two different points of view: the temporal and the substantive.

21.

Both the adoption of the disputed provision of national law and the commencement of the award procedure, together with the decisions to exclude the applicant undertakings, took place prior to 28 December 2009, which was the date on which the period laid down for transposition of the Services Directive ended (Article 44(1)).

22.

However, this is not relevant from a freedom of establishment perspective, since Article 15(6) of the Directive provides that ‘[f]rom 28 December 2006 Member States shall not introduce any new requirement of a kind listed in paragraph 2, unless that requirement satisfies the conditions laid down in paragraph 3’. Consequently, the disputed condition, which was introduced after that date, must be evaluated in relation to Article 15 of the Directive.

23.

In the case of the provisions on freedom to provide services, the Directive does not contain an equivalent standstill clause, but notwithstanding this, the foregoing conclusion also applies here. By virtue of the Inter-Environnement Wallonie case, ( 11 ) and the Société fiduciaire nationale d’expertise comptable case, ( 12 ) during the period specified for transposition, the Member States must refrain from taking any measures ‘liable seriously to compromise the attainment of the result prescribed’ by a directive.

24.

It should also be borne in mind that in this case the provision of national law does not seem to have been adopted with the intention that it should be provisional (in fact, it was adopted only a year before the end of the period prescribed for transposition of the Directive). ( 13 ) The fact that the disputed provision was only in force for a short period of time is not, therefore, a sufficient basis for concluding that it was merely a ‘stage’ in the transposition of the Directive, ( 14 ) or for holding that it was not liable ‘seriously to compromise the attainment of the result prescribed’ by the Directive: a close examination of the wording of the two judgments cited above shows that the decisive factor is not that the measure ultimately compromised the attainment of the result of the Directive, but that it could have done so (had it remained in force).

25.

As the Commission correctly notes, in Italy, the assessment and collection of taxes and other local authority revenue constitutes a ‘service’ within the meaning of Article 4(1) of the Directive and therefore falls within its scope (Article 2(1)).

26.

However, there are also several substantive arguments against the applicability of the Services Directive, which rely on various exceptions to its scope. As exceptions, these derogations must be interpreted strictly and, in any event, without relying on analogy. Of those put forward in this case, none appear to me to be relevant.

27.

First of all, it should be pointed out that, despite its obvious connection with tax-raising powers, the assessment and collection of taxes involved here cannot be viewed as an activity which is excluded from the scope of the Directive as being ‘connected with the exercise of official authority’ within the meaning of Article 51 TFEU (Article 2(2)(i) of the Services Directive). There is extensive case-law to the effect that the exception referred to in that article of the Treaty does not extend to functions that are merely auxiliary and preparatory vis-à-vis an entity which effectively exercises official authority by taking the final decision. The Court of Justice has also clarified that Article 51 TFEU cannot be relied on where private bodies exercise the powers of a public authority ‘under the active supervision of the competent public authority’. ( 15 ) Italian law clearly reserves the exercise of tax-raising powers as such to public bodies and takes the view that the collection of certain taxes is an auxiliary activity which can be carried out through a system of indirect management under the supervision of public bodies and therefore falls within the scope of the Directive.

28.

Neither can the situation under consideration here be excluded from the scope of the Services Directive by virtue of Article 2(3), which provides that the Directive does not apply to ‘the field of taxation’. As is apparent from recital 29 in the preamble, that derogation seeks to make the Directive inapplicable to fiscal measures adopted by the Member States, which are governed by specific provisions of the Treaty. Conversely, administrative activities in ‘the field of taxation’, such as those in the present case, are included in the scope of the Directive, as is fiscal advice, which is specifically mentioned in recital 33 in the preamble to the Directive.

29.

Finally, the exception referred to in Article 17(5) of the Directive, by virtue of which Article 16 is not to apply to ‘the activity of judicial recovery of debts’, does not appear to be relevant here either, as the activity is carried out without the involvement of the judicial authorities.

30.

In the light of the foregoing, we can therefore conclude that the Services Directive is applicable to the present case.

31.

The provision of national law at issue clearly contains a ‘requirement’ within the meaning of the Services Directive, addressed to the service providers in question. In other words, the rules it imposes regarding the conditions for the provision of the service contain an unavoidable stipulation, which as a ‘requirement’ must pass the test of compatibility with the Directive. However, the Directive deals separately with such ‘requirements’ for each of the two situations in which the provision of services may occur: the ‘freedom of establishment’ situation and the ‘freedom to provide services’ situation. This is made clear in the wording itself of the first question put by the referring court, which mentions both Article 15 and Article 16 of the Directive. It is therefore necessary to establish whether the disputed provision should be analysed exclusively in relation to one or the other freedom.

32.

On initial consideration, this situation would seem to satisfy the conditions required by the case-law for the freedom of establishment to apply. ( 16 ) Certainly, the concessions at issue were relatively long (four and five years respectively); moreover, it would seem difficult to carry out an activity such as collecting taxes without a ‘fixed establishment’ in the municipality in question or, at least, in the relevant country.

33.

However, in respect of the duration of the activity, it should be borne in mind that the concept of services within the meaning of the Treaty may include those services ‘which are provided over an extended period’. ( 17 ) Only ‘an activity carried out on a permanent basis, or at least without a foreseeable limit to its duration, does not fall within the Community provisions concerning the provision of services’. ( 18 ) The fact that the activity is expected to continue for four or five years is not, therefore, sufficient.

34.

The use of some form of physical base in the State where the activity is pursued is not absolutely decisive either. It was held in Gebhard that it is open to ‘the provider of services within the meaning of the Treaty [to] equip himself with some form of infrastructure in the host Member State (including an office, chambers or consulting rooms) in so far as such infrastructure is necessary for the purposes of performing the services in question’. ( 19 )

35.

In the light of the foregoing, and in so far as it is conceivable that, in this case, the service might be provided in either situation, it is my view that the disputed provision must be analysed, as the Italian court has requested, in relation to both the freedom of establishment and the freedom to provide services (Articles 15 and 16 of the Services Directive). ( 20 )

36.

The Services Directive has opted to list the restrictions to the freedom of establishment that, to use the Court’s classic terminology, cannot be justified, and those that can be justified provided that they satisfy a number of conditions. Thus, Article 14 lists ‘prohibited requirements’, which include, for example, discriminatory requirements, nationality requirements and residence requirements. Member States are not permitted to make access to, or the exercise of, a service activity subject to compliance with any of these requirements. By contrast, Article 15(2) lists a number of requirements that the Member States are permitted to retain provided that they satisfy the conditions in paragraph 3.

37.

Amongst the requirements which are subject to this ‘evaluation’ or testing, Article 15(2)(c) lists those which relate to ‘the shareholding of a company’. The requirement on participants in a procedure for the award of a concession of the kind in question here (to have a fully paid-up share capital of at least EUR 10000000) might well be considered to fall within this category. We must therefore examine whether it satisfies the conditions of Article 15(3) of the Directive: non-discrimination, necessity and proportionality.

38.

As already indicated, the disputed legislation applies to nationals and non-nationals. The requirement is therefore not directly or indirectly discriminatory from the nationality point of view (or from the point of view of the location of the registered office). ( 21 )

39.

By ‘necessity’, the Services Directive means the traditional condition that the requirement may be justified by a legitimate objective. ( 22 ) More specifically, in the field of freedom of establishment, the ‘necessity’ condition means that ‘requirements must be justified by an overriding reason relating to the public interest’ (Article 15(3)(b)). By virtue of Article 4(8) of the Directive, ‘overriding reason relating to the public interest’ means any reasons ‘recognised as such in the case law of the Court of Justice’ including those which it goes on to list. ( 23 ) This list is, however, simply by way of example: it seems clear that the intention of the Directive was not to limit the list of overriding reasons relating to the public interest to those expressly mentioned in Article 4, but to refer to a generic category which the case-law has always regarded as open.

40.

In this case, the Italian authorities argue that the minimum share capital requirement at issue here is necessary in order to protect the financial interests of municipalities which contract out the assessment and collection service against the risk that, when the times comes to transfer the amounts collected to public funds, concessionaire companies are unable to do so due to insolvency.

41.

The justification put forward by the Italian authorities could, therefore, be seen as an ‘overriding reason relating to the public interest’ pursuant to Article 15 of the Services Directive which is capable, in principle, of justifying the disputed requirement from a freedom of establishment perspective.

42.

The proportionality condition is a different issue.

43.

In line with the case-law concerning grounds for restricting Treaty freedoms, Article 15(3)(c) of the Directive specifies that requirements must be suitable for securing the attainment of the objective pursued, that they must not go beyond what is necessary to attain that objective and that it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.

44.

There is no issue concerning the suitability of the requirement in question vis-à-vis the objective relied on by the Italian authorities, namely the protection of the financial interests of the municipalities. It should be remembered that the amounts collected are not paid over to the municipality immediately but a period of time ( 24 ) elapses between collection and payment, during which the concessionaire can use the funds to carry out financial transactions which are income-producing and may potentially carry a risk. In such cases, the share capital of the concessionaire would constitute an adequate guarantee for the creditor municipality.

45.

Despite this ‘suitability’ vis-à-vis the objective, the disputed measure lacks proportionality on two different levels.

46.

First, the requirement to have a fully paid-up share capital of at least EUR 10000000 goes beyond what is necessary to achieve the objective of protecting the public authority against possible non-performance by the service concessionaire. In my view, the problem lies not in the magnitude of the level set so much as in the completely undiscriminating nature of the measure, which imposes the same quantitative requirement irrespective of the amounts which must be collected and, in essence, the level of financial risk to which the creditor municipality is exposed.

47.

In practice, it is difficult to determine in abstract whether EUR 10000000 constitutes an adequate quantification of the financial ‘guarantee’ which the private concessionaire must offer the municipality, but it seems evident that, if the objective pursued is to provide the public authority with some kind of ‘collateral’ against the risk that the amounts actually collected by the concessionaire are not paid into public funds on time, the amount of such collateral or guarantee should vary depending on the level of risk. Given that putting a figure on the subjective risk of the concessionaire failing to perform is not something which could be readily estimated or predicted, ( 25 ) it would be more appropriate to start with an assessment of the objective risk, namely the tax-collecting potential of the municipality in question, since the greater the amount that the concessionaire is able to collect, the more the local authority will be prejudiced in the event of a payment default or delay.

48.

From that starting point, the tax-collecting potential (and essentially the objective risk assumed by the municipality) can be quantified more or less precisely by taking into account only the number of taxpayers in the relevant municipality or adding in other factors (such as estimates of the amounts collected in previous tax years), either setting the requirement on a case-by-case basis or using groups or bands, but what is clear is that, one way or another, only a guarantee whose amount is set in relation to the potential risk which it is intended to cover can be seen as proportionate.

49.

It is quite probable that, applying this type of solution, one would conclude that a guarantee in the amount of EUR 10000000 is not necessary in every case. ( 26 ) If so, the disputed requirement would be disproportionate in so far as it deprives small undertakings of any chance of accessing the activity.

50.

Second, it is my view that the objective of protecting the financial interests of the municipalities affected could be attained by other less restrictive means, which, moreover, appear already to exist in the Italian legislation relating to public procurement. In fact, the referring court mentions Legislative Decree No 163 of 12 April 2006, ( 27 ) which lays down general requirements relating to participation in award procedures which could perform the function of a guarantee, such as provision of security, proof of technical and financial capacity, proof of solvency and creditworthiness, etc.

51.

In the light of the foregoing, I would have to conclude that Article 15 of the Services Directive precludes a provision of national law such as the one in question.

52.

The analysis of the disputed provision in relation to the rules on freedom to provide services contained in Article 16 of the Directive has some parallels with the foregoing analysis relating to the freedom of establishment, and leads to the same conclusion that it is incompatible with the Directive on grounds of a lack of proportionality. However, it is important to mention the differences between the rules on the freedom of establishment and those on the freedom to provide services.

53.

The first difference relates to the fact that, unlike Article 15 of the Services Directive, Article 16(2) contains a list of only six types of requirement, ( 28 ) and this does not include the requirement relating to share capital. However, there is no reason why this should not be seen as falling within the requirements envisaged in general terms by the third subparagraph of Article 16(1), which provides that ‘Member States shall not make access to or exercise of a service activity in their territory subject to compliance with any requirements which do not respect’ the principles of non-discrimination, necessity and proportionality. The analysis therefore comes back to considering these three conditions.

54.

The second difference revolves around the definition of the ‘necessity’ condition, which is much stricter in relation to the freedom to provide services than in relation to the freedom of establishment. Unlike Article 15(3), Article 16(1)(b) does not refer in a general way to ‘overriding reasons relating to the public interest’ as defined by case-law, and instead sets out an apparently exhaustive list of objectives which may justify the requirement in question: ‘reasons of public policy, public security, public health or the protection of the environment’. ( 29 )

55.

This brings us on to the issue of whether an objective such as that put forward in relation to the disputed requirement comes within one of the four categories mentioned. Similarly, one might question the exhaustive nature of the Article 16(1)(b) list, or even its compatibility with the provisions of the Treaty and, essentially, the very validity of the Directive on this point. ( 30 )

56.

However, as it happens, the way the proportionality test is applied is the same for the freedom to provide services as for the ‘freedom of establishment’ and, as previously indicated, the disputed provision does not pass the test in the latter context. For all these reasons, I propose that, in the case of the freedom to provide services, the Court of Justice proceed directly to apply the proportionality test as set out in points 45 to 50 of this Opinion, dispensing with the need first to address the question of the legitimacy of the stated objective.

57.

Thus, in any event, Article 16 of the Services Directive also precludes a provision of national law such as the one in question in this case.

58.

In the light of the foregoing, I would have to conclude that Articles 15 and 16 of the Services Directive preclude a provision of national law by virtue of which undertakings seeking to be awarded services relating to the assessment and collection of taxes and other local authority revenue must have a fully paid-up share capital of at least EUR 10000000.

59.

In the second of its questions referred for a preliminary ruling, the referring court turns to primary law as a parameter of legality and asks whether the disputed provision is compatible with Articles 3 EC, 10 EC, 43 EC, 49 EC and 81 EC.

60.

In my view, the part of the second question which refers to Articles 3 EC, ( 31 ) 10 EC ( 32 ) and 81 EC (Article 101 TFEU) must be held inadmissible due to the fact that there is insufficient detailed information on the factual and legislative context to link the disputed provision with the Treaty rules on competition. Those requirements, which are a recurring theme in the case-law, ‘are of particular importance in the field of competition, which is characterized by complex factual and legal situations’. ( 33 ) Having excluded these articles, the second question referred for a preliminary ruling now relates only to Articles 43 EC and 49 EC (Articles 49 TFEU and 56 TFEU), in other words, the compatibility of the disputed provision with the freedom of establishment and freedom to provide services.

61.

Now that it has been pared down to these limited terms, and in that we have concluded that the Services Directive is applicable in this case, it is not now necessary to reply to this second question. It should be recalled that there is extensive case-law ( 34 ) to the effect that the Treaty rules on freedoms cease to apply in fields which have been harmonised by the European Union legislature. ( 35 )

62.

In any event, if the Services Directive were deemed inapplicable, the analysis of the disputed provision in relation to the Treaty would be essentially the same as that set out in the previous section: the proportionality of the restrictive measure adopted would still be the issue.

63.

Of course, a ‘direct’ application of the Treaty could not be opposed on the grounds of the entirely domestic nature of the main proceedings. It is quite true that national legislation is ‘capable of falling within the scope of the provisions relating to the fundamental freedoms established by the Treaty only to the extent that it applies to situations connected with trade between the Member States’. Nevertheless, case-law also recognises that the Court’s answer to a question relating to the compatibility of this type of legislation with the Treaty may be useful to the referring court where the legislation in question applies to nationals and non-nationals alike. ( 36 )

64.

On a separate point, in my view, the fact that the disputed provision of national law has already been repealed does not affect the foregoing conclusion, since it is not inconceivable that persons established in another Member State may have been affected by it whilst it was in force. To respond to the argument submitted by the Italian Government that the question referred is inadmissible, the Court’s reply is necessary in order to give judgment in the pending national proceedings, including the actions brought by Duomo, GSP and Irtel.

65.

In conclusion, and in any event in the alternative, Articles 49 TFEU and 56 TFEU must be regarded as precluding a provision of national law such as the disputed provision, which lacks proportionality as described in points 45 to 50 of this Opinion.

66.

In conclusion, I propose that the Court should reply as follows to the questions referred by the Tribunale Amministrativo Regionale per la Lombardia: