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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Italy (Freedom of establishment) [2007] EUECJ C-134/05 (18 July 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C13405.html Cite as: [2007] EUECJ C-134/5, [2007] EUECJ C-134/05 |
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(Failure of a Member State to fulfil obligations Freedom to provide services Right of establishment Extrajudicial debt recovery)
In Case C-134/05,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 22 March 2005,
Commission of the European Communities, represented by E. Traversa, acting as Agent, with an address for service in Luxembourg,
applicant,
Italian Republic, represented by I.M. Braguglia, acting as Agent, and P. Gentili, avvocato dello Stato, with an address for service in Luxembourg,
defendant,
composed of P. Jann, President of the Chamber, K. Lenaerts, E. Juhász, K. Schiemann and E. Levits (Rapporteur), Judges,
Advocate General: M. Poiares Maduro,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 5 October 2006,
after hearing the Opinion of the Advocate General at the sitting on 14 December 2006,
gives the following
Legal context
'It is not permitted to open or manage a pawnbrokers or other business agency, whatever the purpose or duration, even in the form of sales agencies, exhibition agencies, showrooms, commercial exhibition agencies or any other agencies, without a licence issued by the Questore (the local police authority).
A licence is also necessary in order to pursue the profession of broker or agent.
The agencies covered by the present article include agencies for the collection of data to be disseminated by bulletins or other similar means.
The licence shall be valid exclusively for the premises which are specified therein.
Representation by an agent shall be permitted'.
'Police licences are personal: they cannot under any circumstances be transferred or give rise to agency relationships, except where expressly provided for by law.
Where representation by an agent is permitted under a police licence, the agent must possess the qualifications necessary to obtain the licence and be approved by the police authority which issued it.'
'In addition to the conditions laid down by law, any person who has obtained a police licence shall comply with instructions that the public law-enforcement authority considers necessary to issue to him in the public interest.'
'Without prejudice to the specific conditions provided by law in each case, police licences shall be refused to:
1. any person who has been sentenced to a term of imprisonment of more than three years for a crime committed intentionally and who has not been discharged;
2. any person who has received a caution or detention order, who has been declared a habitual or inveterate offender, or as someone having criminal tendencies.
Police licences may be refused to persons who have been sentenced for crimes against the State or public order, for violent crimes against the person, theft, robbery, extortion, kidnapping for the purpose of theft or extortion, for violence towards or resistance to authority, or to any person who is unable to prove that he is of good conduct.
Licences shall be revoked where the conditions to which they are subject are no longer satisfied, either wholly or in part, with respect to the person to whom the licence was issued, and may be revoked where circumstances arise or come to light which would have required or permitted the licence to be refused.'
'Public security officials and agents are entitled to gain access at any time to premises to be used for activities requiring a licence issued by the police and to ensure compliance with the obligations imposed by law, regulations or the authorities.'
'The traders and public agencies referred to in the preceding articles shall be required to keep a daily business record in a manner to be determined by regulation and to display permanently and visibly on the premises the table of services provided and the scale of charges applicable to those services.
Those traders cannot supply services other than those listed in that table or apply higher prices than those set out in the scale of charges ...'
The pre-litigation procedure
The action
the incompatibility with Article 49 EC of the condition that a licence issued by a Questore be obtained;
the incompatibility with Articles 43 EC and 49 EC of the territorial limitation of the licence;
the incompatibility with Articles 43 EC and 49 EC of the obligation to have premises in the territory covered by the licence;
the incompatibility with Articles 43 EC and 49 EC of the requirement that authority must be conferred on an authorised agent in order to pursue the activity of extrajudicial debt recovery in a province for which the operator does not hold a licence;
the incompatibility with Article 49 EC of the obligation to display on the premises a list of the services which may be provided to clients;
the incompatibility with Articles 43 EC and 49 EC of the power granted to the Questore to impose additional requirements designed to ensure compliance with public safety in the general interest;
the incompatibility with Articles 43 EC and 49 EC of the limit on the freedom to fix scales of charges, and
the incompatibility with Articles 43 EC and 49 EC of the prohibition of the concurrent pursuit of the activities covered by the Law on banking and credit services.
The first head of complaint: incompatibility with Article 49 EC of the condition that a licence issued by a Questore be obtained
Arguments of the parties
Findings of the Court
The sixth head of complaint: incompatibility with Articles 43 EC and 49 EC of the possibility for a Questore to impose additional requirements designed to ensure compliance with public safety in the general interest
Arguments of the parties
Findings of the Court
The third (in part) and fifth heads of complaints: incompatibility with Article 49 EC of the obligations to have premises in the territory covered by the licence and to display in those premises a list of the services which may be provided to clients
Arguments of the parties
Findings of the Court
The second and fourth heads of complaints: incompatibility with Articles 43 EC and 49 EC of the territorial limitation of licences to pursue the activity of extrajudicial debt recovery and of the obligation to confer authority on an authorised representative in order to pursue that activity in a province in which the operator does not have a licence; and the third head of complaint, in so far as it is based on the incompatibility with Article 43 EC of the obligation to have premises in each province
Arguments of the parties
Findings of the Court
The seventh head of complaint: incompatibility with Articles 43 EC and 49 EC of the limitation on the freedom to fix scales of charges
Arguments of the parties
Findings of the Court
The eighth head of complaint: incompatibility with Articles 43 EC and 49 EC of the prohibition of the concurrent pursuit of activities covered by the Law on banking and credit services
Arguments of the parties
Findings of the Court
to apply, even though the undertaking holds a licence issued by the Questore of a province, for a new licence for each other province in which it wishes to carry on its activities, unless it confers authority on an authorised agent in that other province, the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC;
to have premises in the territory covered by the licence and to display in those premises a list of the services which may be provided for clients, the Italian Republic has failed to fulfil its obligations under Article 49 EC;
to have premises in each province in which it intends to carry on its activities, the Italian Republic has failed to fulfil its obligations under Article 43 EC.
Costs
On those grounds, the Court (First Chamber) hereby:
1. Declares that, by requiring, within the context of the Consolidated Law on public security (Testo unico delle leggi di pubblica sicurezza), approved by Royal Decree No 773 of 18 June 1931, every undertaking pursuing the activity of extrajudicial debt recovery:
to apply, even though the undertaking holds a licence issued by the Questore of a province, for a new licence for each other province in which it wishes to carry on its activities, unless it confers authority on an authorised agent in that other province, the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC;
to have premises in the territory covered by the licence and to display in those premises a list of the services which may be provided for clients, the Italian Republic has failed to fulfil its obligations under Article 49 EC;
to have premises in each province in which it intends to carry on its activities, the Italian Republic has failed to fulfil its obligations under Article 43 EC;
2. Dismisses the action as to the remainder;
3. Orders the Commission of the European Communities and the Italian Republic to bear their own respective costs.
[Signatures]
* Language of the case: Italian.