6.12.2008

EN

Official Journal of the European Union

C 313/18

(Case C-438/08)

(2008/C 313/27)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and M. Teles Romão, Agents)

Defendant: Portuguese Republic

Form of order sought

—A declaration that the Portuguese Republic, by imposing under, specifically, Articles 3(2), 6(1) and 7 of Decree-Law No 550/99 of 15 December 1999, and point 1(e) of Decree No 1165/2000 of 9 December 2000, restrictions on the freedom of establishment of entities of other Member States intending to carry on in Portugal the activity of vehicle inspection, including, in particular, making the grant of authorisations subject to the public interest, the requirement of minimum share capital of EUR 100 000, the limiting of the undertakings' company objects and the incompatibility rules with regard to other activities of members, managers and directors, has failed to fulfil its obligations under Article 43 of the EC Treaty;

—an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

Subordinating the grant of new authorisations to the public interest constitutes a restriction of freedom of establishment, given that legal persons from other Member States seeking to carry on the activity of vehicle inspection in Portugal are subject to the discretionary power of the competent national authorities, which leads to considerable legal uncertainty as to the extent of their rights.

The requirement of minimum share capital of EUR 100 000 must be regarded as a restriction of freedom of establishment, for it prevents a Community operator having less share capital than the minimum amount demanded by the Portuguese legislation from setting up subsidiaries or branches in Portugal.

Limiting an undertaking's company objects to the carrying on of the activity of vehicle inspection constitutes a restriction of freedom of establishment, for Community operators legally providing other services at the same time (inspecting, repairing and servicing vehicles) in the Member State of establishment would be obliged to alter the undertaking's objects and, perhaps, even its own internal structure in order to be able to extend to Portugal its vehicle-inspecting activity; in addition, this condition cannot be considered necessary in order to guarantee the independence and impartiality of the providers of that service.

The incompatibility rules imposed on the members, managers and directors of the undertaking who deal with the manufacture, repair, rental, import or marketing of vehicles, their parts or accessories or who are involved in transport activity are capable of having restrictive effects comparable to those produced by limiting the company objects and of creating significant restrictions of the freedom of establishment of undertakings from other Member States wishing to carry on the vehicle-inspection activities in Portugal, because the providers of vehicle-inspection services already legally established in another Member State, with members, managers or directors carrying on other activities in the Member State of establishment, would have to alter their internal structure, part company with those members or cause them to give up the incompatible activities.