Presidenza del Consiglio dei Ministri and Others v Rina Services SpA and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2015:159
• Docket Number: C-593/13
• Date: 10 March 2015
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 10 March 2015 ( 1 )

Case C‑593/13

Presidenza del Consiglio dei Ministri

and Othersv

Rina Services SpA,

Rina SpA and

SOA Rina Organismo di Attestazione SpA

(Request for a preliminary ruling from the Consiglio di Stato, Italy)

‛Articles 49 TFEU, 51 TFEU, 52 TFEU and 56 TFEU — Freedom of establishment — Freedom to provide services — Connection with the exercise of official authority — Directive 2006/123/EC — Article 14 — Article 16 — Companies responsible for verifying and certifying that undertakings carrying out public works comply with the requirements laid down by law — National legislation providing that the registered office of such companies must be situated in national territory — Public policy and public security’

1. The present case, which arises from a request for a preliminary ruling from the Italian Consiglio di Stato, affords the Court of Justice the opportunity to interpret and apply, in practice for the first time, the provisions governing freedom of establishment and freedom to provide services laid down in Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market ( 2 ) (‘the Services Directive’), ( 3 ) in the light of the provisions of the Treaty on the Functioning of the European Union which govern those freedoms.

2. In essence, the question raised by the referring court concerns the compatibility with Union law of a provision of national legislation under which companies wishing to provide certain services (in this case, certification services) in a Member State must have their registered office in that Member State. While the Court of Justice has been required over a considerable period of time to consider the requirement for a service provider to have its registered office (or place of residence, in the case of a natural person) in a particular place and has declared such a requirement to be incompatible with primary law, ( 4 ) in the present case the question must be addressed in the light of the Services Directive, which gives concrete expression in secondary law to the settled-case law in this matter. Against that background, the primary difficulty arising in the present case is not that of ascertaining whether, in a situation such as that in the main proceedings, a Member State may make the provision of certification services in its territory subject to the requirement in question, since, as we shall see, the Services Directive is quite clear in that respect, but rather that of establishing the extent to which the obstacle to the exercise of the fundamental freedoms concerned, which that discriminatory requirement represents, may be justified in the present case. As a result, it will be necessary to determine, first of all, which specific provisions of the Services Directive relating to both the right of establishment and the freedom to provide services are applicable to the present case.

I – Legislative framework

A – Union law

3. The Services Directive, the purpose of which, in accordance with Article 1(1) thereof, is to establish ‘general 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’, does not apply, pursuant to Article 2(2)(i) thereof, to activities which are connected with the exercise of official authority, as established in what is now Article 51 TFEU.

4. According to Article 3(3) of the directive, entitled ‘Relationship with other provisions of Community law’: ‘Member States shall apply the provisions of this Directive in compliance with the rules of the Treaty on the right of establishment and the free movement of services.’

5. Article 14 of the Services Directive, which is in Chapter III (‘Freedom of establishment for providers’), provides as follows: ‘Member States shall not make access to, or the exercise of, a service activity in their territory subject to compliance with any of the following: (1) discriminatory requirements based directly or indirectly on nationality or, in the case of companies, the location of the registered office, …; … (3) restrictions on the freedom of a provider to choose between a principal or a secondary establishment, in particular an obligation on the provider to have its principal establishment in their territory, or restrictions on the freedom to choose between establishment in the form of an agency, branch or subsidiary; …’

6. Article 16 of the Services Directive provides: ‘1. 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: (a) non-discrimination: the requirement may be neither directly nor indirectly discriminatory with regard to nationality or, in the case of legal persons, with regard to the Member State in which they are established; (b) necessity: the requirement must be justified for reasons of public policy, public security, public health or the protection of the environment; (c) proportionality: the requirement must be suitable for attaining the objective pursued, and must not go beyond what is necessary to attain that objective. 2. Member States may not restrict the freedom to provide services in the case of a provider established in another Member State by imposing any of the following requirements: (a) an obligation on the provider to have an establishment in their territory; … 3. The Member State to which the provider moves shall not be prevented from imposing requirements with regard to the provision of a service activity, where they are justified for reasons of public policy, public security, public health or the protection of the environment and in accordance with paragraph 1. Nor shall that Member State be prevented from applying, in accordance with Community law, its rules on employment conditions, including those laid down in collective agreements. …’

B – National law

7. According to Article 64(1) of Decree No 207/2010 of the President of the Republic of 5 October 2010 (‘DPR No 207/2010’): ‘Certification organisations shall be constituted as limited companies whose company name must expressly include the term “certification organisation”; they must have their registered office in the territory of the Republic.’

II – Main proceedings and questions referred for a preliminary ruling

8. The request for a preliminary ruling from the Italian Consiglio di Stato arises from three disputes between, on the one hand, the Presidenza del Consiglio dei Ministri and other Italian public authorities and, on the other, Rina Services SpA, Rina SpA and SOA Rina Organismo di Attestazione SpA (‘SOA Rina’), respectively (which I shall refer to collectively as the ‘Rina group companies’), ( 5 ) in connection with the obligation imposed by Italian law requiring ‘certification bodies’ (Società Organismo di Attestazione; ‘SOAs’) ( 6 ) to have their registered office in Italy. The Presidenza del Consiglio dei Ministri and the other Italian public authorities have appealed to the Consiglio di Stato in each of the three sets of proceedings against the corresponding judgments of the Tribunale Amministrativo Regionale per il Lazio, in which, without ruling definitively on the substance, that court upheld the actions brought by each of the Rina group companies contesting Article 64(1) of DPR No 207/2010 on the basis that it is unlawful.

9. The Consiglio di Stato, which joined the three appeals for the purposes of the request for a preliminary ruling, has referred the following questions: ‘(1) Do the TFEU principles of freedom of establishment (Article 49 TFEU) and freedom to provide services (Article 56 TFEU) and the principles laid down in Directive 2006/123/EC preclude the adoption and application of national legislation under which SOAs constituted as limited companies “must have their registered office in the territory of the Republic”? (2) Must the derogation provided for in Article 51 TFEU be interpreted as covering an activity such as the certification carried out by private-law bodies which, on the one hand, are required to be formed as limited companies and operate in a competitive market and, on the other hand, are connected with the exercise of official authority and, for that reason, are subject to authorisation and rigorous controls by the Supervisory Authorities?’

10. Written observations were lodged in these proceedings by the Rina group companies, the Italian Government, the Swedish Government and the European Commission. The latter and the Polish Government replied in writing to the questions put by the Court under Article 61(1) of the Rules of Procedure. Those having submitted oral observations attended the hearing held on 2 December 2014 and were requested to concentrate in their submissions on the first question referred for a preliminary ruling.

III – Preliminary observations

11. By its questions, and irrespective of the observations I will make in relation to the second question, the referring court asks whether the principles laid down in the Treaty (Articles 49 TFEU and 56 TFEU) and the Services Directive relating to...