11.6.2005   

EN

Official Journal of the European Union

C 143/21

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declare that:

the Italian Republic has failed to fulfil its obligations under Articles 43 and 49 of the EC Treaty;

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order the Italian Republic to pay the costs.

1.

The obligation to obtain a licence from the police authority is incompatible with Article 49 of the Treaty in that it applies without distinction to all suppliers established in another Member State, without regard to whether those suppliers have complied with the rules for the protection of the public interest in their country of origin.

2.

Italy is currently divided into 103 provinces. That means that a Community trader who wants to set up business in Italy and extend his business throughout a substantial part of Italy must make as many applications for a licence as there are provinces making up the area he wishes to cover and a total of 103 applications if he wishes to set up and carry on business in the whole of Italy.

3.

A company which wishes to set up in Italy and operate in a certain area not only has to obtain several licences but also has to acquire as many premises as he has licences and as provinces are covered. That obligation is clearly disproportionate, given the cost to the operators, as well as not being indispensable to the carrying on of the business. Furthermore, the obligation to have premises amounts to a requirement that a person who provides cross-border services must become established in the recipient Member State.

4.

A trader who lawfully carries on business must be able to operate throughout Italy without having to enter into a contract of agency with an intermediary where that operator wishes to operate outside the province for which he has obtained a licence. Indeed since that intermediary works in the same sector he is a potential competitor of the principal and furthermore the appointment of an intermediary costs the principal time and money.

5.

The obligation visibly to display the table of services in the premises presupposes that the trader necessarily disposes of premises from which to operate. According to the Court's settled case-law, the obligation to dispose of premises in the recipient Member State amounts to a requirement that the trader who supplies cross-border services be established in the recipient Member State.

6.

The residual power of each provincial police authority (Questore) to make the licence for the business of credit recovery subject to ill defined ‘additional requirements’ infringes the requirements of transparency and objectivity which the Court's case-law stipulates, even where the power of the Questore is circumscribed by the law and by the objective pursued.

7.

The restrictions on the freedom to set prices constitute an obstacle both to the freedom of establishment and the freedom to provide services. A new trader who attempts to enter a given market must be able to compete with traders already operating in that market and the price of the services is a factor of primary importance in acquiring customers.

8.

The incompatibility of the Italian rules with the carrying on of banking and credit services results in a prohibition on the suppliers of banking and credit services from other Member States from carrying on the business of credit recovery in Italy, pursuant either to the freedom of establishment or the freedom to provide services guaranteed by the Treaty.