Erich Ciola contra Land Vorarlberg.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Hirsch
• ECLI: ECLI:EU:C:1999:212
• Procedure Type: Reference for a preliminary ruling
• Celex Number: 61997CJ0224
• Date: 29 April 1999
• Docket Number: C-224/97

Judgment of the Court (Second Chamber) of 29 April 1999. - Erich Ciola v Land Vorarlberg. - Reference for a preliminary ruling: Verwaltungsgerichtshof - Austria. - Free movement of services - Restriction - Moorings - Restriction for boat-owners resident in another Member State. - Case C-224/97.

European Court reports 1999 Page I-02517

Summary Parties Grounds Decision on costs Operative part

Keywords

1 Freedom to provide services - Restrictions - Quota on moorings reserved for users resident in another Member State - Not permissible - Whether justifiable - No justification

(EC Treaty, Art. 59)

2 Community law - Direct effect - Conflict between Community law and a provision of national law - Obligation not to apply the national law - Types of national authority concerned - Types of measure covered - Administrative decision finalised in a Member State before its accession to the Community and entailing a prohibition incompatible with Community law - Penalty imposed after accession - Not permissible

(EC Treaty, Art. 59)

Summary

1 Article 59 of the EC Treaty must be interpreted as precluding a Member State from prohibiting the manager of a boat harbour, on pain of prosecution, from renting moorings in excess of a specified quota to boat-owners who are resident in other Member States.

A restriction of that kind on moorings infringes the prohibition under the first paragraph of Article 59 of the Treaty of all discrimination, even indirect, with regard to providers of services. It cannot be justified by a need to reserve access to the moorings for local boat-owners because of the risk of such moorings being monopolised by persons resident in other Member States and willing to pay higher rental charges, since economic reasons of that nature cannot constitute grounds of public policy, public security or public health capable of rendering discriminatory national legislation compatible with Community law.

2 Since the provisions of the EC Treaty are directly applicable in the legal systems of all Member States and Community law takes precedence over national law, those provisions create rights for the persons concerned which the national authorities must observe and safeguard, and any conflicting provision of national law therefore ceases to be applicable.

The obligation not to apply any conflicting provision of national law is incumbent not only on the national courts but also on all administrative bodies, including decentralised authorities. Moreover, provisions of national law which conflict with such a provision of Community law may be legislative or administrative, the latter category comprising not only general abstract rules but also specific individual administrative decisions.

Consequently, in so far as Article 59 of the Treaty becomes a direct source of law in new Member States upon their accession, a prohibition which is contrary to the freedom to provide services, laid down before the accession of a Member State to the European Union not by a general abstract rule but by a specific individual administrative decision that has become final, must be disregarded when assessing the validity of a fine imposed for failure to comply with that prohibition after the date on which the act of accession entered into force.

Parties

In Case C-224/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Verwaltungsgerichtshof, Austria, for a preliminary ruling in the proceedings pending before that court between

Erich Ciola

and

Land Vorarlberg

on the interpretation of Articles 59 to 66 in conjunction with Article 5 of the EC Treaty and Article 2 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1),

THE COURT

(Second Chamber),

composed of: G. Hirsch (Rapporteur), President of the Chamber, R. Schintgen and K.M. Ioannou, Judges,

Advocate General: J. Mischo,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Austrian Government, by Christine Stix-Hackl, Gesandte in the Federal Ministry of Foreign Affairs, acting as Agent,

- the Commission of the European Communities, by Antonio Caeiro, Principal Legal Adviser, and Viktor Kreuschitz, Legal Adviser, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Erich Ciola, represented by Harald Bösch, Rechtsanwalt, Bregenz; Land Vorarlberg, represented by Peter Bußjäger, lawyer in the Legislative Department, Office of the Government of the Land of Vorarlberg, and Martina Büchel, acting head of the Department of European and External Affairs, Office of the Government of the Land of Vorarlberg, acting as Agents; the Austrian Government, represented by Christine Stix-Hackl; and the Commission, represented by Viktor Kreuschitz, at the hearing on 12 November 1998,

after hearing the Opinion of the Advocate General at the sitting on 10 December 1998,

gives the following

Judgment

Grounds

1 By order of 26 May 1997, received at the Court Registry on 16 June 1997, the Verwaltungsgerichtshof (Administrative Court) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Articles 59 to 66 in conjunction with Article 5 of the EC Treaty and Article 2 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21, and OJ 1995 L 1, p. 1, hereinafter `the Act of Accession').

2 Those questions were raised in proceedings brought by Mr Ciola against fines imposed on him for exceeding the maximum quota of moorings on the shore of Lake Constance reserved for boats whose owners are resident abroad.

3 Mr Ciola is the manager inter alia of ABC-Boots-Charter GmbH. In 1990 that company leased certain land on the shore of Lake Constance. It obtained permission to establish 200 moorings for pleasure boats there.

4 At the company's request, the Bezirkshauptmannschaft Bregenz (the administrative authority of first instance of the Land of Vorarlberg) addressed to it on 9 August 1990 an individual administrative decision (Bescheid), point 2 of which stated:

`With effect from 1 January 1996 a maximum of 60 boats whose owners are resident abroad may be accommodated in the harbour. Until that time the proportion of boats owned by persons resident abroad is to be progressively reduced. No new allocation of...