Ruling of 16 January 2003 [.of the Court Sixth Chamber] in Case C-388/01, Commission of the European Communities v Italian Republic  ECR I-00721
Following complaints about discrimination on the basis of nationality or residence in respect of admission to Italian museums, the Commission undertook inquiries as a result of which it concluded that the scheme of preferential rates applicable to persons aged over 60 or 65 years for admission to various Italian museums did indeed entail discrimination.
Pursuant to the “failure to fulfill obligations” procedure prescribed by the Treaty, the Commission sent to Italy a formal notice to act in a manner consistent with the principle of non discrimination. The Government then informed the Commission about an imminent amendment to its legislation which would extend to all European citizens aged 60 or 65 years or over free admission to Italian museums. That benefit had until then been allowed only for Italian citizens and certain residents.
That amendment concerned only national museums and not municipal museums and monuments (including those of Florence, Padua, Treviso and Venice). The Commission thus decided to bring the EU Court.
Failure to fulfil obligations – Free movement of services – Non-discrimination – Articles 12 EC and 49 EC – Admission to museums, monuments, galleries, archaeological digs, parks and gardens classified as public monuments – Preferential rates granted by local or decentralised State authorities
ANSWER of the COURT:
By allowing discriminatory, advantageous rates for admission to museums, monuments, galleries, archaeological digs, parks and gardens classified as public monuments, granted by local or decentralised State authorities only in favour of Italian nationals and persons resident within the territory of those authorities running the cultural sites in question, who are aged over 60 or 65 years, and by excluding from such advantages tourists who are nationals of other Member States and non-residents who fulfil the same objective age requirements, the Italian Republic has failed to fulfil its obligations under Articles 12 EC and 49 EC.
REASONING of the Court
In its judgment, the Court of Justice has recalled that national legislation on admission to a Member State’s museums which entails discrimination affecting only foreign tourists is prohibited. Furthermore, the equal treatment provided for by the Treaty prohibits all, even
covert, forms of discrimination which, by the application of other criteria of differentiation, lead to the same result. In the present case, under the Italian measure a distinction of treatment is drawn on the basis of residence, which operates mainly to the detriment of nationals of other Member States, since non-residents are in the majority of cases foreigners.
Italy did not deny that discrimination but sought to justify it.
First of all, it relied on considerations in the general interest arising from economic and fiscal criteria: first, it alluded to the cost of managing cultural assets and, second, it submitted that those advantages constituted consideration for the payment of the taxes by which those residents contribute to the running of the sites concerned.
According to the Court of Justice, in the first place, the arguments of a purely economic nature cannot be accepted. In the second place, there is no direct link between any tax on Italian residents and the application of preferential rates for admission to the museums and monuments in question. In addition, the Italian Government put forward the argument that the regulations which introduced the advantageous rates at issue are not within its competence but within that of local authorities.
The EU Court did not accept that justification. A Member State alone is responsible towards the Community for compliance with its Community obligations.
Accordingly, the Court has declared that Italy infringed the Community law principles of the free movement of services and non-discrimination by allowing discriminatory, advantageous rates for admission to cultural sites only in favour of a certain category of persons (Italian nationals and persons aged over 60 or 65 years who are resident within the territory of the
authorities running the sites in question).
There were two different discriminatory situations under the Italian law at issue, for example in Venice and Treviso, the Italian tariffs refer to nationality and thus appear to constitute direct discrimination, whereas in others, for example in Florence and Padua, the tariffs refer to residence and the discrimination therefore appears to be indirect.
As direct discrimination cannot be justified, the Court assessed the Case in the light of indirect discrimination, as enshrined by Article 18 TFEU and 56 TFEU, ex Articles 12 and 49 TEC. The Court noted the non-residents, which are in their majority non-nationals, are to be regarded as recipients of services within the Italian territory and by discriminating them on grounds of nationality, the Italian rules at issue hinders the free movement of services, as enshrined by the Treaty. To reach this conclusion, the Court assessed the Case in two steps, namely if there is a discriminatory element, if yes then if it can be justified.
The principle of equal treatment was assessed as regards the requirement that comparable situations must not be treated differently, i.e. non-residents/ non-nationals with the residents/ Italian nationals. The difference in treatment consisting in the residence conditions, under which nationals could benefit of a more favourable treatment, by comparison, the foreigners were discriminated.
As the residence criterion was the source of discrimination, the justification matter was analysed in the light of the reasons in the general interest that ware put forward by the Italian Government. None of them was found to qualify for this status. Worthnoty in this respect, the Courts’ statement at paragraph 23, where it was found that there is no direct link between the tax payers and the restrictive measure, like in other Cases where such a link was proved. This was actually the integration issue of the non-residents in the Italian society.
 Case C-388/01, Commission of the European Communities v Italian Republic  ECR I-00721, paragraph 24
 Idem, paragraph 27.
 The Court Judgments Case C-107/94 Asscher  ECR I-3089, paragraph 58; Case C-264/96 ICI  ECR I-4695, paragraph 29, and Case C-55/98 Vestergaard  ECR I-7641, paragraph 24).