Commission of the European Communities v Italian Republic.

• Jurisdiction: European Union
• Celex Number: 62000CJ0279
• ECLI: ECLI:EU:C:2002:89
• Court: Court of Justice (European Union)
• Date: 07 February 2002
• Procedure Type: Recurso por incumplimiento – fundado
• Docket Number: C-279/00

Avis juridique important

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62000J0279

Judgment of the Court (Sixth Chamber) of 7 February 2002. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Freedom to supply services - Free movement of capital - Business of providing temporary labour. - Case C-279/00.

European Court reports 2002 Page I-01425

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Actions for failure to fulfil obligations - Examination of the merits by the Court - Situation to be taken into consideration - Situation on expiry of the period laid down by the reasoned opinion

(Art. 226 EC)

2. Freedom to provide services - Restrictions - Requirement that undertakings providing temporary labour which are established in other Member States maintain their registered office or a branch office on a Member State's own territory - Not permissible - Justification based on grounds of public interest - Social protection of workers - Not a justification

(Art. 49 EC)

3. Freedom to provide services - Restrictions justified in the public interest - Whether permissible - Conditions

(Art. 49 EC)

4. Freedom to provide services - Free movement of capital - Restrictions - Requirement that undertakings providing temporary labour which are established in other Member States lodge a guarantee with a credit institution having its registered office or a branch office on a Member State's own territory - Not permissible

(Arts 49 EC and 56 EC)

Summary

1. In an action under Article 226 EC, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes.

( see para. 10 )

2. A Member State which requires in its legislation that undertakings engaged in the provision of temporary labour which are established in other Member States maintain their registered office or a branch office on its territory, fails to fulfil its obligations under Article 49 EC.

In order for the requirement that undertakings providing temporary labour which wish to supply manpower to customers established in a Member State must have their registered office or a branch office on its territory, which is the very negation of the fundamental freedom to provide services, to be accepted, it must be shown that it constitutes a condition indispensable for attaining the objective pursued.

In that regard, notwithstanding that the protection of workers is among the overriding reasons of public interest capable of justifying a restriction on the freedom to provide services, the fact remains, however, that the requirement to have the registered office or a branch office on its territory, goes beyond what is necessary to achieve the objective of protection of workers.

( see paras 17-20, operative part )

3. The freedom to provide services, as one of the fundamental principles of the Treaty, may be restricted only by rules justified by overriding requirements relating to the public interest and applicable to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where it is established.

( see para. 33 )

4. A Member State which requires in its legislation that undertakings engaged in the provision of temporary labour which are established in other Member States lodge a guarantee with a credit institution having its registered office or a branch office on its territory fails to fulfil its obligations under Articles 49 EC and 56 EC.

( see paras 34, 41, operative part )

Parties

In Case C-279/00,

Commission of the European Communities, represented by E. Traversa and M. Patakia, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by U. Leanza, acting as Agent, assisted by D. Del Gaizo, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by requiring undertakings engaged in the provision of temporary labour which are established in other Member States to maintain their registered office or a branch office on Italian territory, and to lodge a guarantee of ITL 700 million with a credit institution having its registered office or a branch office on Italian territory, the Italian Republic has failed to fulfil its obligations under Articles 49 EC and 56 EC,

THE COURT (Sixth Chamber),

composed of: F. Macken, President of the Chamber, C. Gulmann, R. Schintgen (Rapporteur), V. Skouris and J.N. Cunha Rodrigues, Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 4 October 2001,

gives the following

Judgment

Grounds

1 By application lodged at the Registry of the Court of Justice on 13 July 2000, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by requiring undertakings engaged in the provision of temporary labour which are established in other Member States to maintain their registered office or a branch office on Italian territory, and to lodge a guarantee of ITL 700 million with a credit institution having its registered office or a branch office on Italian territory, the Italian Republic has failed to fulfil its obligations under Articles 49 EC and 56 EC.

National legislation

2 Legge No 196, Norme in materia di promozione dell'occupazione (Law No 196 laying down rules on the promotion of employment) of 24 June 1997 (GURI No 154, 4 July 1997, Ordinary Supplement No 136/L, p. 3, hereinafter Law...