Vrij verkeer van diensten: Commissie start procedures tegen Italië, Oostenrijk, Frankrijk en Luxemburg (en)

The European Commission has taken action to put an end to obstacles to the freedom of establishment and to the free movement of services in four Member States. It has decided to take Italy and Luxembourg to the European Court of Justice for failure to comply with the Court judgement which in 2003 had criticised their legislation on patent agents. It is asking for fines to be levied on these two Member States. The Commission has also decided to take Italy to the Court over national legislation on extrajudicial debt collection. In the case of Austria, the Commission will take that country to the Court over its regulations on regular inspections of pressure vessels (e.g. boilers). The Commission has also made formal requests asking two Member States to amend their legislation: France, for its system of awarding hydroelectric concessions, and Italy, for its legislation on security services. These requests take the form of reasoned opinions, the second stage of the infringement procedure laid down in Article 226 of the EC Treaty. If there is no satisfactory reply within two months, the Commission may refer the matter to the Court.

Services account for about 70% of the European Union's GDP. If national laws prevent the free movement of services, firms - and especially SMEs - are deprived of outlets. Their potential clients, whether private individuals or other firms, are deprived of choice and often of better value for money. This threatens the competitiveness of the European economy.

Italy and Luxembourg: patent agents

In its judgement of 13 February 2003 (case C-131/01) the European Court of Justice criticised Italian rules requiring patent agents to be enrolled on the Italian register of agents and to have a residence or place of business in Italy in order to provide services. Similarly, in another judgement of 6 March 2003 (case C-478/01), the Court ruled that the requirement under Luxembourg law for patent agents to elect domicile with an approved agent in order to provide services was incompatible with Article 49 of the EC Treaty guaranteeing the freedom to provide services.

The Commission has decided to take Italy and Luxembourg to the Court under Article 228 of the EC Treaty for failure to comply with these judgements of the Court and for failure, on the part of the relevant national authorities, to notify the Commission of the necessary measures in this respect.

Italy: extrajudicial debt collection

The activity of extrajudicial debt collection in Italy requires a licence which is issued by the relevant police authority in each province (Questura) and which is restricted to the province of issue.

Outside the province, the only way of operating is to conclude agreements with persons who are authorised to operate in the province in question.

Moreover, the activity is restricted to the places specified in the licence, must be publicly announced and is subject to a regulated tariff, and some financial activities are incompatible with the performance of this activity. The Questura also has the discretionary power to lay down additional rules with a view to ensuring public confidence.

Under the rules set out in the EC Treaty to guarantee the freedom to provide services (Article 49), any operator providing a service in a Member State in accordance with the national law of that State should be allowed to provide the same service without hindrance in the other Member States and, under the rules on the freedom of establishment (Article 43), he should also be able set up there without restrictions. Italy's rules violate these principles. Firstly, they do not take account of the conditions already met in the Member State of establishment and, what is more, because of all the provisions mentioned above, they make it extremely difficult for a debt collector established in another Member State to perform any activities in Italy. This restrictive effect results primarily from the need to obtain specific authorisation for each of the 103 provinces in Italy in which a collector wishes to operate. Since the Italian authorities have not given the Commission a satisfactory response on these points (see IP/04/937), the Commission has decided to refer the matter to the Court of Justice.

Austria: inspections of pressure vessels

The Commission has also decided to refer to the Court the Austrian rules on regular inspections of pressure vessels, such as boilers. Only bodies established in Austria can be authorised to perform such work, and this is incompatible with the freedom to provide services. According to Court of Justice case law, an obligation to be established is the very negation of this freedom.

The second complaint in the reasoned opinion concerned the provision whereby the owners of such equipment could change to a different inspection body only after being authorised to do so by the authorities and only if there had been delays or negligence on the part of the previous inspection body. This provision has in the meantime been repealed by the Austrian Constitutional Court, which considered it in breach of the freedom to perform commercial activities, and there are thus no longer any grounds for the complaint.

France: procedures for awarding hydroelectric concessions

The Commission has decided to send France a reasoned opinion concerning its legislation on granting concessions for works using hydroelectric power, on the grounds that it is incompatible with the freedom of establishment. This fundamental freedom prohibits restrictions on cross-border economic activities and, in particular, any form of direct or indirect discrimination between Community operators.

The Commission queries the right of preference given to outgoing concession holders, in accordance with Article 12 of French Decree No 94/894 of 13 October 1994, when concessions for works using hydroelectric power are being renewed. This kind of preference constitutes a serious infringement of the principle of equal treatment for all applicants. It is likely to deter potential applicants from taking on the complex technical work of drawing up and submitting bids.

This system is likely to result in the status quo being maintained indefinitely, since when concessions were about to expire any existing concession holder would be able, if he so wished, to take advantage of the preference accorded him for a new period. Other operators would thus be eligible only in theory.

Italy: private security services

The Commission has decided to send Italy a reasoned opinion, under Articles 43 and 49 of the EC Treaty, concerning its rules on private security activities.

The Commission queries various restrictions which limit access to the Italian market, including in particular the requirement of a licence and a guarantee without regard to whether these requirements have already been met in the Member State of establishment, the territorial restriction of any authorisation to individual provinces, requirements with regard to the number of employees and the obligation to give an oath of allegiance to the Italian Republic, even in the case of temporary services.

In addition, the requirement for employees to be authorised without taking account of any checks which have previously been carried out, the requirement to have a place of business in every Italian province and the administrative control of prices constitute obstacles to the free movement of services.

The effect of all these national provisions is to deter or to prevent any operators legally established in another Member State from offering private security services in Italy.

For the latest information on infringement proceedings involving the Member States, please consult the following website:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm