EN

Official Journal of the European Union

C 327/19

(Case C-458/08)

(2008/C 327/31)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa and P. Guerra e Andrade, Agents)

Defendant: Portuguese Republic

Form of order sought

—A declaration that the Portuguese Republic, by imposing in respect of the provision of building services in Portugal the same requirements as in respect of establishment, has failed to fulfil its obligations under Article 49 EC;

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

Pleas in law and main arguments

The Portuguese law on access to construction activity and continued operation therein (Decree-Law No 12/2004) makes the exercise of construction activity in Portugal subject to a licence.

No undertaking, without exception, may carry on in Portugal building, rebuilding, extension, alteration, repair, conservation, cleaning, restoration or demolition work or, in general terms, any work whatsoever related to construction without prior authorisation issued by the Portuguese authorities.

The Portuguese competition legislation prohibiting undertakings, including Community undertakings, from providing construction services in Portugal without prior authorisation to enter the construction industry issued by the Portuguese authorities constitutes an infringement of Article 49 EC.

The requirements for access to the building industry, as laid down in the Portuguese legislation, are establishment requirements. The Portuguese legislation does not distinguish establishment from the provision of services of a temporary nature.

In order to provide services in Portugal undertakings established in another Member State are obliged to satisfy all the conditions necessary for establishment, which means in practice that there is no solution for those construction companies other than to establish themselves in Portugal. Such a requirement seriously restricts freedom to provide services.

The requirements in relation to continuing to operate also amount to restrictions of the freedom to provide services, for they make it impossible to provide construction services of a temporary nature.

The reasons given by the Portuguese State in order to justify the restrictions in question have not been substantiated and cannot be taken into consideration.