61998J0358

1. Member States - Obligations - Failure to fulfil obligations - Retention of a national provision incompatible with Community law - Justification on the basis of administrative practices ensuring that the Treaty is applied - Not permissible

(EC Treaty, Art. 169 (now Art. 226 EC))

2. Freedom to provide services - Restrictions - National legislation making cleansing undertakings established in other Member States subject to an obligation to register in the register of undertakings - Not permissible

(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC))

1. The incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty.

( see para. 17 )

2. A Member State which, pursuant to national legislation, makes the provision of cleansing, disinfection, disinfestation, rodent-control and sanitation services by undertakings established in other Member States subject to registration in the register of undertakings, without excluding from its scope those service providers established in other Member States who, under the legislation of their Member State of establishment, already satisfy equivalent formal requirements, is in breach of its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC).

( see paras 13,14 and 18 and operative part )

In Case C-358/98,

Commission of the European Communities, represented by E. Traversa and M. Patakia, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor U. Leanza, Head of the Legal Department in the Ministry of Foreign Affairs, acting as Agent, assisted by O. Fiumara, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, by making the provision of cleansing, disinfection, disinfestation, rodent-control and sanitation services by operators established in other Member States subject to registration in the registers referred to in Article 1 of Italian Law No 82 of 25 January 1994, in accordance with Articles 1 and 6 of that Law, the Italian Republic has failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC),

THE COURT (Fourth Chamber),

composed of: D.A.O. Edward (Rapporteur), President of the Chamber, P.J.G. Kapteyn and H. Ragnemalm, Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 18 November 1999,

gives the following

Judgment

1 By application lodged at the Court Registry on 2 October 1998, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) in which it sought a declaration that, by making the provision of cleansing, disinfection, disinfestation, rodent-control and sanitation services by operators established in other Member States subject to registration in the registers referred to in Article 1 of Italian Law No 82 of 25 January 1994 (GURI No 27 of 3 February 1994, p. 4, hereinafter Law No 82/94), in accordance with Articles 1 and 6 of that Law, the Italian Republic has failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC).

The national legislation

2 Law No 82/94 covers cleansing, disinfection, disinfestation, rodent-control and sanitation activities.

3 Paragraph (1) of Article 1 of Law No 82/94, entitled Registration of cleansing undertakings in the commercial register or the provincial register of small businesses, provides:

Undertakings engaged in cleansing, disinfection, disinfestation, rodent-control and sanitation activities, hereinafter referred to as "cleansing undertakings", shall be registered in the commercial register provided for under the single text approved by Royal Decree No 2011 of 20 September 1934, as subsequently amended, or in the provincial register of small businesses provided for under Article 5 of Law No 443 of 8 August 1985 if they satisfy the conditions laid down in the present Law.

4 Failure to comply with that provision results in imposition of the penalties set out in Article 6 of Law No 82/94, entitled Penalties, paragraphs (2) to (5) of which provide:

2. In the case where the cleansing undertaking carries out the activities covered by this Law without being registered in the commercial register or the provincial register of small businesses, or if it carries out those activities despite suspension of its registration or after its registration has been annulled, the owner of the individual undertaking, the agent with control over the undertaking, one of its branches or one of its seats, all of the partners in the case of a partnership, the partners in the case of a limited partnership or a limited partnership with share capital, or the board members in all other types of company, including cooperatives, shall be liable to a prison term of up to six months or to a fine of between ITL 200 000 and ITL 1 million.

3. If the cleansing undertaking entrusts the performance of the activities covered by this Law to undertakings which are in a situation which could give rise to the penalties referred to in paragraph (2), the owner of the individual undertaking, the agent with control over the undertaking, one of its branches or one of its seats, all of the partners in the case of a partnership, the partners in the case of a limited partnership or a limited partnership with share capital, or the board members in all other types of company, including cooperatives, shall be liable to a prison term of up to six months or to a fine of between ITL 200 000 and ITL 1 million.

4. Any person concluding contracts relating to the performance of the activities covered by this Law with cleansing undertakings which are not registered in the commercial register or the provincial register of small businesses, which have been struck off those registers or whose registration has been suspended, or who, in any event, pays for the services of such undertakings, shall be liable to an administrative fine of between ITL 1 million and ITL 2 million. In the case where such contracts are concluded by public undertakings or public bodies, the latter shall be liable to an administrative fine of between ITL 10 million and ITL 50 million.

5. Contracts concluded with cleansing undertakings which are not registered in the commercial register or the provincial register of small businesses, or which have been struck off those registers or whose registration has been suspended, shall be null and void.

5 Under Article 8 of Law No 580 of 29 December 1993 establishing a register of undertakings (GURI No 7 of 11 January 1994, ordinary supplement No 6, hereinafter Law No 580/93), the commercial register was incorporated in the new register of undertakings after a three-year period running from the entry into force of that Law. Further, pursuant to Article 8, small businesses registered in the registers provided for by Law No 443 of 8 August 1985 are also registered in a special section of the register of undertakings.

6 Under Article 1(2) of Law No 82/94 and Article 18 of Law No 580/93, registration in the register of undertakings involves payment of an annual charge.

Pre-litigation procedure

7 By letter of 3 April 1995, the Commission indicated to the Italian Government why it considered that Articles 1 and 6 of Law No 82/94 were contrary to Article 59 of the Treaty and put it on formal notice to submit to it its observations within two months of receiving that letter.

8 Since it received no reply, the Commission delivered a reasoned opinion to the Italian Government on 12 March 1996, pursuant to the first paragraph of Article 169 of the Treaty, calling on it to adopt the necessary measures of compliance within two months of notification.

9 In the absence of any measures by the Italian Government to comply with that opinion, the Commission brought the present action.

Substance

10 At the outset, the Commission notes that, under Article 1 of Law No 82/94 in conjunction with Article 8 of Law No 580/93, all cleansing undertakings, irrespective of their form, are required to register in the new register of undertakings.

11 The Commission claims that the obligation to register in the register of undertakings and the severe penalties provided for in the event of non-compliance with that obligation are in clear infringement of Article 59 of the Treaty. By imposing penalties such as prison sentences and fines of up to ITL 50 million for non-compliance with Article 1 of Law No 82/94, Article 6 thereof makes registration in the register of undertakings an essential precondition for carrying out cleansing activities in Italy. Inasmuch as that obligation applies in equal measure to undertakings established in a Member State other than the Italian Republic, it prevents the free provision of services or, at the very least, constitutes a barrier to such provision.

12 The Commission takes the view that Law No 82/94 also introduces covert discrimination against undertakings established in the other Member States. This condition of registration has the practical effect of dissuading such undertakings from performing in Italy the cleansing activities covered by that Law. According to the Commission, it is unlikely that an undertaking from another Member State would incur the administrative obligations involved in registration in the registers of undertakings, together with the cost of the annual charge for inscription, solely in order to provide services on a more or less occasional and ad hoc basis, and in any event in a temporary and non-regular manner.

13 It is accepted, and is not disputed by the Italian Government, that, by virtue of the general nature of its terms, Law No 82/94 is intended to apply to every provider of services, whether or not established in Italy, and irrespective of whether or not the provider offers its services in Italy on an occasional or regular basis. More particularly, it must be pointed out that this legislation does not exclude from its scope a provider of services who is established in a Member State other than the Italian Republic and who, under the legislation of its Member State of establishment, already satisfies formal requirements equivalent to those under the Italian Law.

14 It has consistently been held that such national provisions do not comply with the requirements of Article 59 of the Treaty (see, in particular, the judgment of 23 November 1999 in Joined Cases C-369/96 and C-376/96 Arblade and Others [1999] ECR I-0000, paragraphs 33 to 35).

15 The Italian Government does, however, point out that national provisions are at present being drafted which will resolve the problems raised by the Commission. It adds that, Law No 82/94 as presently in force notwithstanding, cleansing undertakings established in other Member States may operate and do in fact operate in Italy without the need for them to be entered in the register of undertakings.

16 Suffice it to hold in this regard that even if, in practice, the authorities of a Member State do not apply to nationals of other Member States the national provisions which are at variance with Community law, that fact is not such as to remove the breach of Community law which those provisions represent.

17 The Court has consistently held that the incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature which have the same legal force as those which must be amended. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the Treaty (see, in particular, Case C-197/96 Commission v France [1997] ECR I-1489, paragraph 14).

18 It must accordingly be held that, by making the provision of cleansing, disinfection, disinfestation, rodent-control and sanitation services by operators established in other Member States subject to registration in the registers referred to in Article 1 of Law No 82/94, in accordance with Articles 1 and 6 of that Law, the Italian Republic has failed to fulfil its obligations under Article 59 of the Treaty.

Costs

19 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Italian Republic has been unsuccessful, the Italian Republic must be ordered to pay the costs.

On those grounds,

THE COURT (Fourth Chamber),

hereby:

1. Declares that, by making the provision of cleansing, disinfection, disinfestation, rodent-control and sanitation services by operators established in other Member States subject to registration in the registers referred to in Article 1 of Italian Law No 82 of 25 January 1994, in accordance with Articles 1 and 6 of that Law, the Italian Republic has failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC);

2. Orders the Italian Republic to pay the costs.