JUDGMENT OF THE COURT (Fourth Chamber)
9 March 2000 (1)
(Failure by a Member State to fulfil its obligations - Provision of cleansing,
disinfection, disinfestation, rodent-control and sanitation services - Undertakings
established in other Member States - Obligation to register)
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,
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,
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 referredto 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 whichhave 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, itprevents 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 theappropriate 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.
Delivered in open court in Luxembourg on 9 March 2000.
R. Grass
D.A.O. Edward
Registrar
President of the Fourth Chamber