JUDGMENT OF THE COURT (Fifth Chamber)
15 January 2002 (1)
(Failure to fulfil obligations - Infringement of Articles 52 and 59 of the EC Treaty (now, after amendment, Articles 43 EC and 49 EC) - Retention of certain national and regional rules regarding trade fairs, markets and exhibitions)
In Case C-439/99,
Commission of the European Communities, represented by E. Traversa and M. Patakia, acting as Agents, assisted by A. Cevese, Avvocato, 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 retaining the following provisions:
- Article 2, first paragraph, and Article 7 of Royal Decree-Law No 454 of 29 January 1934;
- Article 2, first paragraph, of Presidential Decree No 7 of 15 January 1972;
- Article 2, paragraphs 4, 6 and 7, of Presidential Decree No 390 of 18 April 1994;
- Article 4 of Regional Law No 40 of Liguria of 14 July 1978;
- Article 6, paragraph 1(e), (f), (g) and (h), Article 6, paragraph 4, and Article 7 of Regional Law No 35 of Veneto of 2 August 1988;
- Article 2, sixth paragraph, Article 4, first indent, Article 6, third and fourth paragraphs and Article 10, third paragraph, (a), of Regional Law No 16 of the Marches of 12 March 1979;
- Article 4, Article 5, sixth paragraph, (a) and (c), Article 6, first paragraph, Article 8, first and second paragraphs, and Article 16, first paragraph, of Regional Law No 43 of Emilia-Romagna of 26 May 1980;
- Article 4, paragraph 1(c), Article 4, paragraph 2, and Article 15, paragraph 3, of Regional Law No 45 of Lombardy of 29 April 1980;
- Article 3, Article 4 and Article 8, last paragraph, of Regional Law No 10 of Friuli Venezia Giulia of 23 February 1981;
- Article 2, last paragraph, and Article 6 of Regional Law No 75 of Abruzzo of 13 November 1980, and
- Article 3, Article 5, Article 6, third and fourth paragraphs, Article 12 and Article 19, first paragraph, of Provincial Law No 35 of the Autonomous Province of Trento of 2 September 1978,
the Italian Republic has failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC), Article 60 of the EC Treaty (now Article 50 EC), Articles 61, 63 and 64 of the EC Treaty (now, after amendment, Articles 51 EC, 52 EC and 53 EC) and Articles 65 and 66 of the EC Treaty (now Articles 54 EC and 55 EC), and that
- by retaining the following provisions:
- Article 3 of Presidential Decree No 7 of 15 January 1972;
- Article 2(c) and (d), Article 3, first paragraph, (b) and (c), and Article 5, first paragraph, (a), of Regional Law No 12 of Liguria of 3 November 1972;
- Article 8, paragraph 1(d) of Regional Law No 35 of Veneto of 2 August 1988;
- Article 6, third paragraph, points 3 and 4, Article 7, Article 8, second paragraph, and Article 11, first paragraph, of Regional Law No 43 of Emilia-Romagna of 26 May 1980;
- Article 5, paragraphs 2 and 5, Article 10, paragraph 4, Article 11, paragraphs 2 and 3, and Article 15, paragraph 1, of Regional Law No 45 of Lombardy of 29 April 1980;
- Article 5, Article 13, Article 14 and Article 15, first paragraph, (a), of Regional Law No 10 of Friuli Venezia Giulia of 23 February 1981;
- Article 7 of Regional Law No 75 of Abruzzo of 13 November 1980, and
- Articles 6, 7 and 23 of Provincial Law No 35 of the Autonomous Province of Trento of 2 September 1978,
the Italian Republic has failed to fulfil its obligations under Articles 59 to 61 and 63 to 66 of the Treaty and under Articles 52 and 54 of the EC Treaty (now, after amendment, Articles 43 EC and 44 EC), Article 55 of the EC Treaty (now Article 45 EC), Articles 56 and 57 of the EC Treaty (now, after amendment, Articles 46 EC and 47 EC) and Article 58 of the EC Treaty (now Article 48 EC),
THE COURT (Fifth Chamber),
composed of: P. Jann, President of the Chamber, S. von Bahr (Rapporteur), A. La Pergola, L. Sevón and M. Wathelet, 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 29 May 2001,
gives the following
- by retaining the following provisions:
- Article 2, first paragraph, and Article 7 of Royal Decree-Law No 454 of 29 January 1934;
- Article 2, first paragraph, of Presidential Decree No 7 of 15 January 1972;
- Article 2, paragraphs 4, 6 and 7, of Presidential Decree No 390 of 18 April 1994;
- Article 4 of Regional Law No 40 of Liguria of 14 July 1978;
- Article 6, paragraph 1(e), (f), (g) and (h), Article 6, paragraph 4, and Article 7 of Regional Law No 35 of Veneto of 2 August 1988;
- Article 2, sixth paragraph, Article 4, first indent, Article 6, third and fourth paragraphs and Article 10, third paragraph, (a), of Regional Law No 16 of the Marches of 12 March 1979;
- Article 4, Article 5, sixth paragraph, (a) and (c), Article 6, first paragraph, Article 8, first and second paragraphs, and Article 16, first paragraph, of Regional Law No 43 of Emilia-Romagna of 26 May 1980;
- Article 4, paragraph 1(c), Article 4, paragraph 2, and Article 15, paragraph 3, of Regional Law No 45 of Lombardy of 29 April 1980;
- Article 3, Article 4 and Article 8, last paragraph, of Regional Law No 10 of Friuli Venezia Giulia of 23 February 1981;
- Article 2, last paragraph, and Article 6 of Regional Law No 75 of Abruzzo of 13 November 1980, and
- Article 3, Article 5, Article 6, third and fourth paragraphs, Article 12 and Article 19, first paragraph, of Provincial Law No 35 of the Autonomous Province of Trento of 2 September 1978,
the Italian Republic has failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC), Article 60 of the EC Treaty (now Article 50 EC), Articles 61, 63 and 64 of the EC Treaty (now, after amendment, Articles 51 EC, 52 EC and 53 EC) and Articles 65 and 66 of the EC Treaty (now Articles 54 EC and 55 EC), and that
- by retaining the following provisions:
- Article 3 of Presidential Decree No 7 of 15 January 1972;
- Article 2(c) and (d), Article 3, first paragraph, (b) and (c), and Article 5, first paragraph, (a), of Regional Law No 12 of Liguria of 3 November 1972;
- Article 8, paragraph (1)(d) of Regional Law No 35 of Veneto of 2 August 1988;
- Article 6, third paragraph, points 3 and 4, Article 7, Article 8, second paragraph, and Article 11, first paragraph, of Regional Law No 43 of Emilia-Romagna of 26 May 1980;
- Article 5, paragraphs 2 and 5, Article 10, paragraph 4, Article 11, paragraphs 2 and 3, and Article 15, paragraph 1, of Regional Law No 45 of Lombardy of 29 April 1980;
- Article 5, Article 13, Article 14 and Article 15, first paragraph, (a), of Regional Law No 10 of Friuli Venezia Giulia of 23 February 1981;
- Article 7 of Regional Law No 75 of Abruzzo of 13 November 1980, and
- Articles 6, 7 and 23 of Provincial Law No 35 of the Autonomous Province of Trento of 2 September 1978,
the Italian Republic has failed to fulfil its obligations under Articles 59 to 61 and 63 to 66 of the Treaty and under Articles 52 and 54 of the EC Treaty (now, after amendment, Articles 43 EC and 44 EC), Article 55 of the EC Treaty (now Article 45 EC), Articles 56 and 57 of the EC Treaty (now, after amendment, Articles 46 EC and 47 EC) and Article 58 of the EC Treaty (now Article 48 EC).
Pre-litigation procedure
Admissibility
Substance
Preliminary observations
The first charge: breach of the principle of freedom to provide services
- require trade-fair organisers to obtain official recognition from the Italian national, regional or local authorities (Article 2, first paragraph, of Decree-Law No 454/34; Article 2, first paragraph, of Presidential Decree No 7/72; Article 2, paragraph 4, of Presidential Decree No 390/94; Article 8, first and second paragraphs, of Regional Law No 43/80 of Emilia-Romagna; Article 5, first paragraph, of Provincial Law No 35/78 of Trento; Article 7 of Regional Law No 35/88 of Veneto; Article 4, paragraph 1(c) of Regional Law No 45/80 of Lombardy);
- require trade-fair organisers to have a permanent national or local headquarters, establishment or organisation (Article 15, paragraph 3, of Regional Law No 45/80 of Lombardy; Article 8, last paragraph, of Regional Law No 10/81 of Friuli Venezia Giulia);
- require trade-fair organisers to have a particular legal form or status, thereby excluding other categories of operators (Article 4 of Regional Law No 43/80 of Emilia-Romagna, under which trade events must be organised by public bodies, by organisations directly under the auspices of trade associations, by private associations and by committees whose object or main aim is an activity of some other kind);
- require the business of trade-fair organisers to be carried out on an exclusive basis (Article 4, paragraph 1(c), of Regional Law No 45/80 of Lombardy; Article 3 of Regional Law No 10/81 of Friuli Venezia Giulia; Article 5, first paragraph, of Provincial Law No 35/78 of Trento);
- require trade-fair organisers to operate on a not-for-profit basis (Article 4, paragraph 1(c) and paragraph 2, of Regional Law No 45/80 of Lombardy; Article 6, paragraph 1(e), (f) and (h), of Regional Law No 35/88 of Veneto; Article 4 of Regional Law No 10/81 of Friuli Venezia Giulia; Articles 3, 5, first and second paragraphs, 12 and 19, first paragraph, of Provincial Law No 35/78 of Trento; Article 4 of Regional Law No 40/78 of Liguria; Article 5, sixth paragraph, (c), of Regional Law No 43/80 of Emilia-Romagna);
- require that trade fairs be held periodically (Article 6, first paragraph, of Regional Law No 43/80 of Emilia-Romagna, under which national and international trade events must be organised by a body having a permanent headquarters and a permanent management structure and must be of pre-determined frequency and duration);
- require trade events to be organised in conformity with objectives set by a region as part of its regional planning (Article 5, sixth paragraph, (a), of Regional Law No 43/80 of Emilia-Romagna);
- require compliance with particularly strict time-limits in the compulsory administrative authorisation procedure (Article 2, paragraphs 4, 6 and 7, of Presidential Decree No 390/94, under which an application for recognition as an international trade fair and authorisation for it to be held must be made to the competent authorities not later than 30 September two years before that in which the event is to be held (paragraph 4), and also require that such standing is to be recognised before 1 February in the year before that in which the event is to be held and that notice of that measure is to be given to the regions (paragraph 5), that measures within the purview of the regional authorities relating to the authorisation in question must be adopted by the regions 30 days before the notification referred to in paragraph 5 (paragraph 6) and that, before 30 September in the year preceding that in which the events are held, the regions must forward to the Ministry of Industry, Commerce and Crafts a list of trade events that are authorised and recognised as being of national importance (paragraph 7));
- prohibit the organisation of trade fairs other than those included on the official calendar (Article 7 of Royal Decree No 454/34; Article 16, first paragraph, of Regional Law No 43/80 of Emilia-Romagna).
The second charge: breach of the principles of freedom to provide services and freedom of establishment
- involvement of the public authorities or local bodies of other kinds in administrative appointments, wholly or in part, for trade-fair organisers, such as the board of directors, the executive committee, the auditors, the chairman, or the secretary (Article 3 of Presidential Decree No 7/72; Articles 2(c) and (d), Article 3, first paragraph, (b) and (c), and Article 5, first paragraph, (a), of Regional Law No 12/72 of Liguria; Article 8, paragraph 1(d) of Regional Law No 35/88 of Veneto; Article 8, second paragraph, and Article 11, first paragraph, of Regional Law No 43/80 of Emilia-Romagna; Article 5 of Regional Law No 10/81 of Friuli Venezia Giulia);
- inclusion amongst the founders or members of at least one local territorial institution (Article 8, second paragraph, of Regional Law No 43/80 of Emilia-Romagna);
- the involvement, even if only on an advisory basis, of bodies made up of operators already in the territory in question or their representatives for the purposes of recognition and approval of the organiser and the grant of public financing to him (Article 6, third paragraph, points 3 and 4, of Regional Law No 43/80 of Emilia-Romagna; Articles 6, 7 and 23 of Provincial Law No 35/78 of Trento; Articles 13, 14 and 15, first paragraph, (a), of Regional Law No 10/81 of Friuli Venezia Giulia; Article 5, paragraphs 2 and 5, Article 10, paragraph 4, Article 11, paragraphs 2 and 3, and Article 15, paragraph 1, of Regional Law No 45/80 of Lombardy).
- by retaining the following provisions:
- Article 2, first paragraph, and Article 7 of Royal Decree No 454/34;
- Article 2, first paragraph, of Presidential Decree No 7/72;
- Article 2, paragraphs 4, 6 and 7, of Presidential Decree No 390/94;
- Article 4 of Regional Law No 40/78 of Liguria;
- Article 6, paragraph 1(e), (f) and (h), and Article 7 of Regional Law No 35/88 of Veneto;
- Article 4, Article 5, sixth paragraph, (a) and (c), Article 6, first paragraph, Article 8, first and second paragraphs, and Article 16, first paragraph, of Regional Law No 43/80 of Emilia-Romagna;
- Article 4, paragraph 1(c) and paragraph 2, and Article 15, paragraph 3, of Regional Law No 45/80 of Lombardy;
- Articles 3, 4 and 8, last paragraph, of Regional Law No 10/81 of Friuli Veneto Giulia, and
- Articles 3, 5 and 12 of Regional Law No 35/78 of Trento,
the Italian Republic has failed to fulfil its obligations under Articles 59 to 61 and 63 to 66 of the Treaty, and that
- by retaining the following provisions:
- Article 3 of Presidential Decree No 7/72;
- Article 2(c) and (d), Article 3, first paragraph, (b) and (c), and Article 5, first paragraph, (a), of Regional Law No 12/72 of Liguria;
- Article 8, paragraph 1(d), of Regional Law No 35/88 of Veneto;
- Article 8, second paragraph, and Article 11, first paragraph, of Regional Law No 43/80 of Emilia-Romagna, and
- Articles 5, 13, 14 and 15, first paragraph, (a), of Regional Law No 10/81 of Friuli Veneto Giulia,
the Italian Republic has failed to fulfil its obligations under Articles 59 to 61 and 63 to 66 of the Treaty and under Articles 52 and 54 to 58 of the Treaty.
Costs
43. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has asked that the Italian Republic be ordered to pay the costs and the latter has been essentially unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1. Declares that by retaining the following provisions:
- Article 2, first paragraph, and Article 7 of Royal Decree No 454 of 29 January 1934;
- Article 2, first paragraph, of Presidential Decree No 7 of 15 January 1972;
- Article 2, paragraphs 4, 6 and 7, of Presidential Decree No 390 of 18 April 1994;
- Article 4 of Regional Law No 40 of Liguria of 14 July 1978;
- Article 6, paragraph 1(e), (f) and (h), and Article 7 of Regional Law No 35 of Veneto of 2 August 1988;
- Article 4, Article 5, sixth paragraph, (a) and (c), Article 6, first paragraph, Article 8, first and second paragraphs, and Article 16, first paragraph, of Regional Law No 43 of Emilia-Romagna of 26 May 1980;
- Article 4, paragraph 1(c) and paragraph 2, and Article 15, paragraph 3, of Regional Law No 45 of Lombardy of 29 April 1980;
- Articles 3, 4 and 8, last paragraph, of Regional Law No 10 of Friuli Veneto Giulia of 23 February 1981, and
- Articles 3, 5 and 12 of Provincial Law No 35 of the Autonomous Province of Trento of 2 September 1978,
the Italian Republic has failed to fulfil its obligations under Article 59 of the EC Treaty (now, after amendment, Article 49 EC), Article 60 of the EC Treaty (now Article 50 EC), Articles 61, 63 and 64 of the EC Treaty (now, after amendment, Articles 51 EC, 52 EC and 53 EC) and Articles 65 and 66 of the EC Treaty (now Articles 54 EC and 55 EC);
2. Declares that by retaining the following provisions:
- Article 3 of Presidential Decree No 7 of 15 January 1972;
- Article 2(c) and (d), Article 3, first paragraph, (b) and (c), and Article 5, first paragraph, (a), of Regional Law No 12 of Liguria of 3 November 1972;
- Article 8, paragraph 1(d), of Regional Law No 35 of Veneto of 2 August 1988;
- Article 8, second paragraph, and Article 11, first paragraph, of Regional Law No 43 of Emilia-Romagna of 26 May 1980, and
- Articles 5, 13, 14 and 15, first paragraph, (a), of Regional Law No 10 of Friuli Veneto Giulia of 23 February 1981,
the Italian Republic has failed to fulfil its obligations under Articles 59 to 61 and 63 to 66 of the Treaty and under Articles 52 and 54 of the EC Treaty (now, after amendment, Articles 43 EC and 44 EC), Article 55 of the EC Treaty (now Article 45 EC), Articles 56 and 57 of the EC Treaty (now, after amendment, Articles 46 EC and 47 EC) and Article 58 of the EC Treaty (now Article 48 EC);
3. Dismisses the remainder of the action;
4. Orders the Italian Republic to pay the costs.
Jann
Sevón Wathelet
|
Delivered in open court in Luxembourg on 15 January 2002.
R. Grass P. Jann
Registrar President of the Fifth Chamber
1: Language of the case: Italian.