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Q4/2016/JN - Query from the Austrian Ombudsman Board concerning privileged conditions of access to a local swimming pond for residents

Available languages: en
  • Case: Q4/2016/JN
    Opened on 18 Aug 2016 - Decision on 22 Nov 2016
  • Institution(s) concerned: European Commission

Facts and background

On 1 August 2016, the European Ombudsman received a query from the Austrian Ombudsman Board (AOB) linked to its investigation into the restrictive conditions under which non-residents can purchase season cards for a local swimming pond. The conditions for purchase are governed by a 2012 decision of the Vienna Neudorf Municipal Council. While residents and members of local clubs can purchase a season card all year long, non-residents who do not belong to a local club may buy a season card between 15 and 30 April only. Moreover, only 200 season cards are available for non- residents who do not belong to a local club. The Austrian Ombudsman Board pointed out that season cards were very advantageous because they only cost EUR 22 while a one-day ticket costs EUR 6 and EUR 7 on Saturdays, Sundays and public holidays. The Austrian Ombudsman Board believed that this double restriction (time and quantity) breached the prohibition of discrimination (Article 18 TFEU[1]) and freedom of movement of services (Article 56 TFEU[2]). The municipality argued that the conditions were justified because the municipality is among the nation’s areas with the highest pollution and noise, and residents are exposed to increased traffic, noise and pollution Thus, it is justified to offer some compensation (access to a local recreation area) in order to prevent their  migration to other municipalities.

Query

On 18 August 2016, the European Ombudsman decided to open a query procedure in order to ask the Commission's services for an explanation on the interpretation of Article 18 TFEU and Article 56 TFEU, in the circumstances of the investigation at hand.

Commission's reply

On 20 September 2016, the Commission provided its opinion. It pointed out that, in accordance with well-established case law, distinctions based on residence are liable adversely to affect mainly nationals of other EU Member States since non-residents are in the majority of cases foreigners[3]. Article 20(1) [4] of Directive 2006/123 prohibits such discrimination on services in the internal market[5] as well as by Article 56 and Article 18 TFEU.

The Commission referred to Commission v. Italy[6], where the Court held that preferential admission rates to museums and monuments on grounds of nationality and residence breached Articles 18 and 56 TFEU. The Commission further pointed out that discrimination occurs when different rules are applied to comparable situations or when the same rule is applied to different situations[7]. In accordance with recital 94 of Directive 2006/123, the prohibition of discrimination does not preclude tariff advantages based on legitimate and objective criteria[8].

The Commission pointed out that it did not have sufficient information to take a definitive position on this case. Nevertheless, it could not identify any objective justification for the distinction at stake. The Commission further said that it could not ascertain whether there was any evidence supporting the assertion that the use of the swimming pond by foreigners would increase the risk that residents would move away. Even if the restrictions were objectively justified, they would have to be suitable to achieve the aim pursued. In this case, the conditions of purchase appear restrictive and disproportionate.

The Commission did not understand how the limitation of sales to non-residents to two weeks only could contribute to the protection of residents’ health. The aim to improve the wellbeing of residents could likely be achieved by less restrictive measures such as the limitation of access for non-residents to certain times or preferential tariffs for residents. The existing case law authorises distinguishing between residents and non-residents regarding the conditions of access to certain social benefits on the basis of the link between the beneficiaries and the financing society[9]. Other judgments allow for distinguishing with the aim to maintain the cohesion of the tax system. However, a direct link between preferential tariffs and taxation is needed to allow for such differentiation[10].

Feedback

The Commission’s reply was forwarded to the Austrian Ombudsman Board with an invitation to submit comments. The Austrian Ombudsman Board expressed its satisfaction with the provided explanations, which it found very helpful.

Closing procedure

Given that the Commission had provided an exhaustive reply, which the Austrian Ombudsman Board found helpful, the European Ombudsman thanked the Commission for its excellent co-operation in this query procedure.

 

[1] Article 18 reads, in relevant part, as follows: “Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

[2] Article 56 reads, in relevant part, as follows: “... restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended. ...

[3] C-388/01 Commission v Italy, judgment of 16 January 2003, C-224/97 Ciola v. Land Vorarlberg, judgment of 29 April 1999.

[4] Article 20(1) reads as follows: “Member States shall ensure that the recipient is not made subject to discriminatory requirements based on his nationality or place of residence.

[5] Directive 2006/123/EC of the European Parliament and of the Council if 12 December 2006 on services in the internal market, OJ L 376, 27.12.2006.

[6] C-388/01 Commission v Italy, judgment of 16 January 2003.

[7] C-311/97 Royal Bank of Scotland v. Elliniko Dimosio (Greek State), judgment of 29 April 1999.

[8] Recital 94 reads, in relevant part, as follows: “In accordance with the Treaty rules on the free movement of services, discrimination on grounds of the nationality of the recipient or national or local residence is prohibited ... However, the prohibition of discriminatory requirements should not preclude the reservation of advantages, especially as regards tariffs, to certain recipients, if such reservation is based on legitimate and objective criteria.

[9] C-103/08 Arthur Gottwald v. Bezirkshauptmannschaft Bregenz, judgment of 1 October 2009.

[10] C-388/01 Commission v Italy, judgment of 16 January 2003.