Opinion of the Advocate General — ECLI:EU:C:2010:134
Date: 2010-03-11
Language of the case: Italian
Subject matter: Competition;Consumer protection;Freedom to provide services
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Admissibility – Limits (Art. 234 EC) 2. Preliminary rulings – Jurisdiction of the Court (Art. 234 EC) 3. Competition – Community rules – Obligations of the Member States (Arts 10 EC, 81 EC and 82 EC) 1. It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions it submits to the Court. Consequently, when the questions submitted concern the interpretation of European Union law, the Court is, in principle, bound to give a ruling. It follows that questions relating to European Union law enjoy a presumption of relevance. The Court may thus refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (see paras 19-20) 2. When, in the context of a reference for a preliminary ruling, all aspects of the case before the referring court are confined within one Member State, an answer may nevertheless be useful to the referring court, in particular if its national law were to require it to allow a national of that Member State to enjoy the same rights as those which a national of another Member State would derive from European Union law in the same situation. The situation evoked in the above paragraph applies to the rights that a national of another Member State could derive from European Union law if he were in the same situation as the applicant, running a pharmacy in a specific municipal area and faced with a decision of the competent national authorities applying national legislation to an application which in no way calls in question the general system of rules on opening times and holidays for pharmacies laid down by that legislation, but seeks merely to obtain, as an exception to that general system, exemption from any period of closure. Therefore, in the light of the specific circumstances of the main proceedings, it is quite obvious that the interpretation of Article 49 EC, requested by the referring court in its order, is not relevant for the outcome of the main proceedings. (see paras 23-25) 3. The provisions of Community law relating to competition, in particular Articles 81 EC to 86 EC, are manifestly inapplicable to national legislation relating to the possible grant of an exemption in relation to the opening periods of a pharmacy located in a specific municipal area. Such legislation cannot, in itself or by its application, affect trade between Member States within the meaning of Articles 81 EC and 82 EC. (see paras 29, 32)