Erich Ciola: JUDGMENT OF 29. 4. 1999 - CASE C-224/97
Erich Ciola: JUDGMENT OF 29. 4. 1999 - CASE C-224/97
Erich Ciola: JUDGMENT OF 29. 4. 1999 - CASE C-224/97
J U D G M E N T O F T H E C O U R T (Second Chamber)
29 April 1999 *
In Case C-224/97,
Erich Ciola
and
Land Vorarlberg
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CIOLA ν LAND VORARLBERG
T H E C O U R T (Second Chamber),
after hearing the oral observations of Erich Ciola, represented by Harald Bosch,
Rechtsanwalt, Bregenz; Land Vorarlberg, represented by Peter Bußjäger, lawyer in
the Legislative Department, Office of the Government of the Land of Vorarlberg,
and Martina Biichel, 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,
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JUDGMENT OF 29. 4. 1999 — CASE C-224/97
after hearing the Opinion of the Advocate General at the sitting on 10 December
1998,
Judgment
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 E C 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').
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CIOLA ν LAND VORARLBERG
'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. N o new
allocation of moorings to boat-owners resident abroad or extension of expired
rental contracts with such owners is permitted until the maximum foreigner quota
has been reached...'.
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JUDGMENT OF 29. 4. 1999 — CASE C-224/97
the Federal Republic of Germany, even though the maximum quota of 60 moor-
ings reserved for foreigners had already been exceeded.
9 Since it considered that Mr Ciola's appeal against the fines raised questions con-
cerning the interpretation of Community law, the Verwaltungsgerichtshof stayed
proceedings and referred the following two questions to the Court:
'1. Are the provisions concerning the freedom to provide services to be interpreted
as precluding a Member State from prohibiting the operator of a boat harbour,
on pain of criminal prosecution, from renting more than a specific quota of
moorings to boat-owners who are resident in another Member State?
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CIOLA ν LAND VORARLBERG
Question 1
10 By its first question, the national court essentially asks whether the Treaty provi
sions on freedom to provide services are to be interpreted as precluding a Member
State from establishing a maximum quota of moorings which may be rented to
boat-owners resident in another Member State.
1 1 It should be observed at the outset that, as the national court has pointed out, first,
the right freely to provide services may be relied on by an undertaking as against
the State in which it is established if the services are provided for persons estab
lished in another Member State (Case C-70/95 Sodėmare and Others v Regione
Lombardia [1997] E C R 1-3395, paragraph 37) and, second, in accordance with
Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984]
E C R 377, paragraph 16, and Case 186/87 Cowan v Trésor Public [1989] E C R 195,
paragraph 15, that right includes the freedom for recipients of services to go to
another Member State in order to receive a service there, without being obstructed
by restrictions.
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JUDGMENT OF 29. 4. 1999 — CASE C-224/97
14 While the restriction of the number of moorings which may be allocated to non
resident boat-owners is not based on their nationality, and so may not be regarded
as direct discrimination, it does, however, use as the distinguishing criterion their
place of residence. It is settled case-law that national rules under which a distinc
tion is drawn on the basis of residence are liable to operate mainly to the detriment
of nationals of other Member States, as non-residents are in the majority of cases
foreigners (see Case C-350/96 Clean Car Autoservice ν Landeshauptmann von
Wien [1998] E C R 1-2521, paragraph 29).
16 National rules which are not applicable to services without distinction whatever the
place of residence of the recipient, and which are therefore discriminatory, are com
patible with Community law only if they can be brought within the scope of an
express derogation, such as Article 56 of the E C Treaty (see Case 352/85 Bond van
Adverteerders and Others ν Netherlands State [1988] E C R 2085, paragraph 32);
however, economic aims cannot constitute grounds of public policy within the
meaning of that provision (Case C-288/89 Collectieve Antennevoorziening Gouda
ν Commissariaat voor de Media [1991] E C R 1-4007, paragraph 11).
17 Since the Land of Vorarlberg has justified the imposition of a quota on moorings
for non-resident owners not on grounds of public policy, public security or public
health, but for economic reasons for the benefit of local owners, Article 56 of the
Treaty cannot be applied; in those circumstances, it must be ascertained whether
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CIOLA ν LAND VORARLBERG
the existence of an exception in the Act of Accession authorised the Land of Vorar
lberg to take measures such as the quota at issue in the main proceedings in order
to limit the influx of boat-owners from other Member States.
18 O n this point, it suffices to note that Article 70 of the Act of Accession lays down
an express derogation, for a limited time, only for existing legislation regarding
secondary residences.
Question 2
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JUDGMENT OF 29. 4. 1999 — CASE C-224/97
22 It appears from the grounds of the order for reference that in a case of failure to
comply with general abstract rules which were not compatible with a fundamental
principle of the Treaty, the Verwaltungsgerichtshof would have set aside such rules
in favour of Community law on the basis of the Court's judgment in Case 106/77
Amministrazione delle Finanze dello Stato ν Simmenthai [1978] E C R 629.
24 The Austrian Government submits that there is no reason why the case-law on the
primacy of Community law should be applied, automatically and without restric
tion, to specific individual administrative acts. In support of its argument, it relies
on the enforceability of administrative acts and refers in that connection to the
case-law on what is known as the 'procedural autonomy of the Member States'. In
its view, to hold that Community law takes precedence over an enforceable admin
istrative act would be liable to call into question the principles of legal certainty,
protection of legitimate expectations or protection of lawfully acquired rights.
26 Next, since the provisions of the E C Treaty are directly applicable in the legal sys
tems of all Member States and Community law takes precedence over national law,
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CIOLA ν LAND VORARLBERG
those provisions create rights for the persons concerned which the national authori
ties must observe and safeguard, and any conflicting provision of national law
therefore ceases to be applicable (see Case 167/73 Commission ν France [1974] E C R
359, paragraph 35).
27 Since the essential requirements of Article 59 of the Treaty became directly and
unconditionally applicable at the end of the transitional period (see Case 279/80
Webb [1981] E C R 3305, paragraph 13), that provision consequently precludes the
application of any conflicting measure of national law.
29 While the Court initially held that it is for the national court to refuse if necessary
to apply any conflicting provision of national law (see Simmenthal, cited above,
paragraph 21), it subsequently refined its case-law in two respects.
30 Thus it appears from the case-law, first, that all administrative bodies, including
decentralised authorities, are subject to that obligation as to primacy, and
individuals may therefore rely on such a provision of Community law against
them (Case 103/88 Fratelli Costanzo ν Comune di Milano [1989] E C R 1839,
paragraph 32).
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JUDGMENT OF 29. 4. 1999 — CASE C-224/97
31 Second, provisions of national law which conflict with such a provision of Com
munity law may be legislative or administrative (see, to that effect, Case 158/80
Rewe ν Hauptzollamt Kiel [1981] E C R 1805, paragraph 43).
33 There is no reason why the legal protection which individuals derive from the direct
effect of provisions of Community law and which the national courts must ensure
(see Case C-213/89 R v Secretary of State for Transport ex parte Factortame and
Others [1990] E C R I-2433, paragraph 19) should be refused to those individuals in
cases where the dispute concerns the validity of an administrative measure. The
existence of such protection cannot depend on the nature of the conflicting provi
sion of national law.
34 It follows from the foregoing that a prohibition which is contrary to the freedom
to provide services, laid down before the accession of a Member State to the Euro
pean Union not by a general abstract rule but by a specific individual administra
tive 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 of acces
sion.
Costs
35 The costs incurred by the Austrian Government and by the Commission, which
have submitted observations to the Court, are not recoverable. Since these proceed
ings are, for the parties to the main proceedings, a step in the action pending before
the national court, the decision on costs is a matter for that court.
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CIOLA ν LAND VORARLBERG
O n those grounds,
T H E C O U R T (Second Chamber),
R. Grass G. Hirsch
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