Judgment — ECLI:EU:C:2010:133
Date: 2010-03-11
Language of the case: Italian
Court formation: Third Chamber
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Question raised concerning a dispute confined within a single Member State (Art. 267 TFEU) 2. Freedom of movement for persons – Freedom of establishment – Provisions of the Treaty – Scope (Arts 43 EC, 48 EC, 49 EC and 56 EC) 3. Freedom of movement for persons – Freedom of establishment – Restrictions (Arts 43 EC and 48 EC) 1. In the context of a reference for a preliminary ruling, when all the facts in the main proceedings are confined within a single Member State, the Court may have jurisdiction to answer the national court when, with regard to regulations laying down mandatory minimum distances between roadside service stations, it is far from inconceivable that companies established in Member States other than the Member State concerned have been or are interested in selling motor fuel in that Member State. (see paras 22-24) 2. National legislation which provides for mandatory minimum distances between roadside service stations must be examined in the light of the provisions of the Treaty on freedom of establishment. Since the construction of such roadside service stations by the legal persons referred to in Article 48 EC necessarily implies that they have access to the territory of the host Member State with a view to a stable and continuous participation in the economic life of that State, in particular by the setting up of agencies, branches or subsidiaries, the provisions concerning the freedom to provide services, which may only be applied where the provisions concerning the freedom of establishment do not apply, are not relevant. Furthermore, even if that legislation were to have restrictive effects on free movement of capital, those effects would be the unavoidable consequence of an obstacle to freedom of establishment and would not therefore justify an independent examination of that legislation from the point of view of Article 56 EC. (see paras 39-41) 3. Article 43 EC, read in conjunction with Article 48 EC, is to be interpreted as meaning that domestic provisions, which lay down mandatory minimum distances between roadside service stations, applying only in the case of the construction of new service stations, constitute a restriction on the freedom of establishment enshrined in the EC Treaty. That restriction does not appear to be such as to be justified by the objectives of road safety, protection of health and the environment, or the rationalisation of the service provided to users, these being matters for the national court to verify. Such a rule, which applies only to new service stations and not to service stations already in existence before the entry into force of the rule, makes access to the activity of fuel distribution subject to conditions. By being more advantageous to operators already present on the national market, such a rule is liable to deter, or even prevent, access to the national market by operators from other Member States and constitutes a restriction of the freedom of establishment within the meaning of Article 43 EC. That restriction does not appear justified by the objectives of road safety, protection of health and the environment, when it does not appear to be a measure aimed at achieving those objectives in a consistent and systematic manner and, therefore, does not appear appropriate to ensuring the attainment of those objective invoked and does not go beyond what is necessary to attain those objectives, subject to verification to be carried out by the national court. With regard to the rationalisation of the service provided to users, reasons of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty. In addition, even assuming that that objective could, to the extent that it falls within the scope of consumer protection, be regarded as an overriding reason in the public interest and not a reason of a purely economic nature, it is difficult to see how such legislation can be appropriate to protect consumers or be beneficial to them. On the contrary, by hindering the market access of new operators, such legislation appears instead to favour the position of operators already present on the national territory, without consumers obtaining any real benefits. In any event, it appears that the legislation goes beyond what is necessary to attain any objective of consumer protection, this being a matter which is for the national court to verify. (see paras 45, 51-52, 55-57, operative part)