Opinion of Advocate General Darmon delivered on 10 March 1993

1 Original language: French.

2 Commission's observations, p. 2 of the French translation.

3 Reichsgesetzblatt II, p. 623.

4 Bundesgesetzblatt II, p. 116.

5 Bundesgesetzblatt 1959 II, p. 998.

6 Article 9.

7 Paragraph 6.

8 Sec, inter alia, Case C-204/90 Bachmann v Belgian Stale [1992] ECR I-249, paragraph 6.

9 Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11.

10 Case 305/87 Commission v Greece [1989] ECR 1461, paragraph 13.

11 Case C-186/87 Cowan v Trésor public [1989] ECR 195.

12 Paragraph 14, emphasis added.

13 See, inter alia. Case 352/85 Bond van Adverteerders v Netherlands State [1988] ECR 2085.

14 Case 279/80 Webb [1981] ECR 3305.

15 Paragraph 8.

16 Paragraph 13.

17 Paragraph 14. Sec also Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221.

18 Paragraph 16.

19 In that respect, the Court has held that the freedom to provide services includes the freedom, for the recipients of services, to go to another Member State in order to receive a service there, without being obstructed by restrictions ... (Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 16). See also Cowan v Tresor public, paragraph 15. Consequently, whether it is the provider of services himself or the successors in title who act on the territory of another Member State through the intermediary of the provider, the situation resulting from a provision such as the one under consideration is equally restrictive: either the successors must give security or they must restrict their choice to a provider of services who is a national of the State in which the court is situated.

20 Cited in footnote 16.

21 Paragraph 15. It would note that, although this form of words is the one that the Court commonly uses to explain the justification for an obstacle to the freedom to provide services, it has also held — in particular in Bond van Adverteerders — that in certain cases that justification may be based on grounds of public policy within the meaning of Article 56 of the Treaty.

22 Portugal does not recognize any requirement to give security for costs, France repealed it by Law No 75-596 of 9 July 1975 and Italy, for its part, has declared it unconstitutional.

23 Belgian law dispenses Community nationals from having to give security for costs where matters covered by the Treaty are concerned.

24 Sec paragraph 14 of the judgment in Case C-288/89 Collectieve Antennevoorziening Gouda v Commissariaat voor de Media [1991] ECR I-4007, which sets out a number of overriding reasons relating to the public interest recognized by the Court.

25 Case 33/74 Van Binsbergen v Bedrijfsvereniging Metaalnijverheid [1974] ECR 1299.

26 RI W 1993, Heft 2, p. 150, at 151.

27 Commission's submissions, p. 3 of the French translation.

28 Case 1/72 Frilli v Belgian State [1972] ECR 457.

29 Paragraph 12.

30 Case 121/85 Conegate v HM Customs and Excise [1986] ECR 1007, paragraph 25.

31 Case 9/74 Casagrande v Landeshauptstadt München [1974] ECR 773.

32 Paragraph 6.

33 Case 203/80 Casati [1981] ECR 2595.

34 Paragraph 27. Sec, to the same effect, paragraph 19 of the judgment in Cowan v Trésor public.

35 See paragraph 24 of the judgment in Case 270/83 Commission v France [1986] ECR 273.

36 Case 82/71 Pubblico Ministero v SAIL [1972] ECR 119, paragraph 5.