Action brought on 12 August 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-369/08)

(2008/C 285/37)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and P. Dejmek, acting as Agents)

Defendant: Federal Republic of Germany

Form of order sought

Pleas in law and main arguments

Under the first paragraph of Article 43 EC, all rules which restrict the freedom of establishment of nationals of a Member State in the territory of another Member State are prohibited. It follows from Article 48 EC that the Treaty provisions on the freedom of establishment are the same for companies having their registered office, central administration or principal place of business within the Community as they are for natural persons who are nationals of Member States. The provisions on equal treatment prohibit not only overt discrimination by reason of nationality or, in the case of companies, their registered office, but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.

According to Point 2.1 of Annex VIIIb to the StVZO, an inspection organisation for carrying out technical inspections or safety checks and the inspection and approval of motor vehicles can be recognised in Germany only if it is constituted exclusively by at least 60 independent motor vehicle experts engaged in that activity as their main profession; in the defined area within which the organisation has received recognition, as many inspection engineers must be established as are necessary to ensure a ratio of at least one, and at most 30, inspection engineers for every 100 000 motor vehicles and trailers registered in that area.

It is the view of the Commission that this requirement constitutes an inadmissible restriction on the right of establishment which infringes Article 43 EC or, alternatively, Article 43 EC in conjunction with Article 48 EC. The requirement that an organisation be made up exclusively of a minimum number of independent experts engaged in the activity in question as their main profession represents a qualitative restriction, inasmuch as undertakings wishing to carry out the activity in question would be obliged to adopt a particular structure. In particular, this requirement excludes dependent employees, who cannot become members of such an organisation. Moreover, the disputed provision also represents a quantitative restriction because it prescribes a minimum number of members for these inspection organisations. These preconditions governing recognition make it impossible for any economic operator which is lawfully established in another Member State and has a different legal form or internal structure to provide technical inspection services in Germany. Finally, the requirement that, within the area of recognition, as many inspection engineers must be established as are necessary to ensure a ratio of at least one inspection engineer for every 100 000 motor vehicles and trailers there registered amounts to a restriction that is contrary to Article 43 EC (in conjunction with Article 48 EC), because that criterion in particular places at a disadvantage legal persons already established in other Member States and whose inspection engineers are not necessarily established in the area of recognition.

In the present case, the Commission claims, neither Article 45 EC nor Article 46 EC is relevant.

According to Article 45 EC, the Treaty provisions on freedom of establishment do not apply to activities which in a Member State are connected, even occasionally, with the exercise of official authority. The criteria which emerge from settled case-law for establishing cases of direct and specific exercise of official authority are, however, not fulfilled with regard to the activities of the inspection organisations, in particular with regard to the carrying out of technical inspections. Neither the fact that the inspection organisations decide on the granting or removal of roadworthiness certificates nor the State supervision of those organisations proves that they exercise official authority. Firstly, the final decision on the refusal of a roadworthiness certificate can be made only by the competent body (that is, the licensing authority) in the corresponding federal Land and not by the inspection organisation. The inspection organisation, rather, assists and plays a preparatory role vis-à-vis the licensing authority. Secondly, the conclusion may not be drawn from the fact that the State supervises certain organisations that all tasks performed by such organisations are connected with the exercise of official authority. Even if isolated tasks of the inspection organisation were to be considered as amounting to an exercise of official authority, the exclusion of the technical inspections of motor vehicles from the application of the freedom of establishment would go too far and would extend significantly beyond the purpose of the derogation provided for by Article 45 EC. Vehicle inspection is a purely technical task which, although it may have legal consequences, cannot be regarded as constituting a direct exercise of official authority.

So far as concerns Article 46 EC, which provides for the possibility of justification for unequal treatment on grounds of public policy, public security or public health, the case-law of the Court of Justice provides that, in order for reliance to be placed on this ground of justification, there must be a genuine and sufficiently serious threat affecting one of the aforementioned fundamental interests. As the German authorities have not provided evidence of any such threat, the conditions for invoking the derogating rule under Article 46 EC have not been met. The Commission is satisfied that the objective being pursued by the measures under challenge, namely the maintenance of road safety, could also be achieved by less restrictive measures, such as, for instance, an appropriate monitoring system for all inspection engineers and inspection organisations in Germany.