Opinion of the Advocate General — ECLI:EU:C:2015:168
Date: 2015-03-12
Language of the case: Italian
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Italy

summary terms, why the referring court considers the interpretation of Article 15 of the Charter to be necessary for the purposes of resolving the dispute pending before it. The national court merely states that it has doubts as to whether the principles enshrined in that provision may fully apply to the profession of pharmacist, even though that profession has been placed under a number of obligations that lie in the general interest. 69. On that point, I would not hesitate to say that any worker and any undertaking active within the internal market — whether or not required to discharge one or more obligations in the general interest — is to enjoy the right enshrined in Article 15 of the Charter. I also find it difficult to deny that the legislation at issue before the referring court is capable of partially limiting that right. (55) 70. However, once it is established that that restriction is justified by the need to protect public health, (56) I fail to see what additional aspects of incompatibility, between the national law at issue and EU law, Article 15 of the Charter potentially brings into the equation. 71. Indeed, Article 52(1) of the Charter accepts that limitations may be imposed on the exercise of rights such as those set forth in Article 15 of the Charter, as long as the limitations are provided for by law, respect the essence of those rights and freedoms and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. (57) 72. It is barely necessary to point out in this context that the Charter also recognises as a fundamental right, in Article 35, that any individual must have access to preventive health care and benefit from medical treatment. 73. Against that background, one would have expected to find some explanation in the order for reference as to why the referring court believed that the national legislation at issue did not properly balance those two fundamental rights, or why that legislation did not respect the essence of the right provided for in Article 15 of the Charter. 74. In the absence of any explanation on these crucial aspects, I have to conclude that the second question referred by the TAR Sicilia is inadmissible to the extent that the order for reference does not comply with Article 94 of the Rules of Procedure. 3. Substance 75. With regard to the substance of the issue raised by the referring court in Question 2, I will limit my analysis to the following. 76. I cannot see, either in the order for reference or in the observations lodged by Mr Gullotta, anything to cast doubt on the fact that the national legislation at issue has struck a fair and appropriate balance between, on the one hand, the freedom to choose an occupation and the right to engage in work, and, on the other hand, the right to health care. Nor do I find anything to suggest that the right provided for in Article 15 of the Charter has been so harshly fettered that the essence of that right can be considered to be compromised. 77. On that basis, I do not believe that Article 15 of the Charter precludes legislation such as the national legislation at issue before the referring court. D – Question 3 78. Finally, by its third question, the referring court in substance asks whether Articles 102 and 106 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which reserves the retail sale of certain medicinal products only to pharmacies, to the exclusion of para-pharmacies. 1. Admissibility 79. With regard to the third question, too, I must voice my doubts concerning admissibility. Once again, the order for reference lacks any explanation as to why the referring court considers that the legislation at issue does not comply with Articles 102 and 106 TFEU. 80. In the first place, as regards Article 102 TFEU, I do not quite understand whether, in the view of the referring court, each (or some) of the over 15 000 pharmacies located throughout the Italian territory should be considered to hold a single dominant position, or whether those entities should be considered to hold a joint dominant position. In the second place, even assuming that a position of dominance could be established, it would remain to be determined in what way that position might be illegitimately exploited with a view to eliminating competition from the relevant market(s). 81. With regard, next, to Article 106 TFEU, it must be pointed out that, recently, the Court has once again confirmed its case-law to the effect that a Member State is in breach of the prohibitions laid down in Article 106(1) TFEU, read in conjunction with Article 102 TFEU, if it adopts any law, regulation or administrative provision that creates a situation in which a public undertaking or an undertaking on which it has conferred special or exclusive rights is led, merely by exercising the preferential rights conferred upon it, to abuse its dominant position or where those rights are liable to create a situation in which that undertaking is led to engage in such abuse. The Court has also made it clear that an infringement of Article 106(1) TFEU, read in conjunction with Article 102 TFEU, requires the establishment of a potential or actual anti-competitive effect liable to result from the fact that the State has conferred special or exclusive rights on some undertakings. (58) 82. Against that background, it becomes evident that — assuming that the legislation at issue could be regarded as conferring on pharmacies special or exclusive rights for the purposes of Article 106(1) TFEU — it would still have to be understood how, in the view of the referring court, pharmacies may be induced to abuse their dominant position by virtue of the special or exclusive rights granted. 83. Yet, no explanation whatsoever is provided on any of those matters. In those circumstances, it is therefore impossible to understand why or how Articles 102 and 106 TFEU could preclude national legislation such as that at issue before the referring court. (59) 84. In fact, I observe that a rather similar question was put to the Court in Servizi Ausiliari Dottori Commercialisti, in which an Italian court asked the Court whether Articles 102 and 106 TFEU precluded national legislation which reserved exclusively to Tax Advice Centres — public limited companies authorised by the Italian Ministry of Finance — the right to engage in certain tax advice and assistance activities. In its decision, the Court stressed that the mere creation of a dominant position through the grant of special or exclusive rights is not in itself incompatible with the Treaties. A breach of Articles 102 and 106(1) TFEU thus requires not only that the national legislation at issue have the effect of granting special or exclusive rights to certain undertakings, but also that such legislation can lead those undertakings to abuse a dominant position. Yet, the Court found that neither the order for reference nor the written observations provided it with the factual and legal information which could enable it to determine whether the requirements as to the existence of a dominant position or of abusive conduct, within the meaning of Articles 102 and 106(1) TFEU, were fulfilled. It thus declared the question inadmissible. (60) 85. The same conclusion is, in my opinion, warranted in the present case. 2. Substance 86. As mentioned above, I cannot find, either in the order for reference or in the observations lodged by Mr Gullotta, anything to suggest a possible breach of Articles 102 and 106(1) TFEU. 87. Consequently, I see no reason why Articles 102 and 106 TFEU should be interpreted as precluding national legislation, such as that at issue before the referring court, which reserves the retail sale of certain medicinal products only to pharmacies, to the exclusion of para-pharmacies. E – Final remarks 88. In the year 2014, there were almost 40 cases in which the Court dismissed requests for preliminary rulings either because they were wholly inadmissible, or because of a clear lack of jurisdiction. In an equally significant number of cases, requests from national courts have been partially dismissed on those grounds. The vast majority of those cases exhibited precisely the types of procedural issue which have been examined in the present Opinion: (i) questions on the interpretation of fundamental freedoms despite all aspects of the main proceedings being confined within one Member State, (61) (ii) questions on the interpretation of the Charter in cases which presented no clear connection with EU law, (62) or (iii) orders for reference which failed to describe the basic factual and legislative context of the questions referred. (63) 89. Regrettably, it is not unusual for national courts to refer questions to the Court casting doubt on the compatibility of national laws with EU law by reference to a relatively significant number of EU provisions, but without explaining why each of those provisions might be relevant to the case under consideration. Analogous problems are raised by references which, conversely, query the compatibility of national laws with EU law without identifying any specific provisions of EU law. 90. This practice is not acceptable. Every case dismissed on procedural grounds results in a significant waste of resources for both the national court making the reference and the EU judiciary (in particular, because of the required translation of the order for reference into all official languages of the European Union). The administration of justice is also delayed vis-à-vis the parties in the main proceedings, without producing any benefits. 91. Article 19(1) TEU designates as guardians of the EU legal order and of the judicial system of the EU both the Court and the courts and tribunals of the Member States. Indeed, both the European Union and the national judiciaries have been entrusted with the task of ensuring the full application of EU law in all Member States and of ensuring judicial protection of an individual’s rights under that law. (64) 92. In the light of this key constitutional principle, the Court of Justice is willing to do its utmost to help national courts to fulfil their judicial function within the EU legal order. Yet, the Court is also conscious of the limits placed upon its own activities by the Treaties. 93. National courts ought also to be mindful of those limits. In particular, they should be aware of recent decisions indicating that the Court is adopting a stricter approach in the assessment of its jurisdiction to answer questions under Article 267 TFEU and of the admissibility of such questions. 94. More generally, national courts should always bear in mind that the principle of sincere cooperation which underlies the procedure in Article 267 TFEU (65) applies reciprocally. They ought to help the Court … to help them. IV – Conclusion 95. In the light of the foregoing considerations, I propose that the Court declare that the second and third questions referred for a preliminary ruling by the Tribunale Amministrativo Regionale per la Sicilia in Case C‑497/12 are inadmissible. 1 – Original language: English. 2 – See, for example, judgments in The Chartered Institute of Patent Attorneys, C‑307/10, EU:C:2012:361, paragraph 31, and Danske Slagterier, C‑445/06, EU:C:2009:178, paragraph 65. See also judgment in Meilicke, C‑83/91, EU:C:1992:332, paragraph 22. 3 – See, among many, judgments in Kamberaj, C‑571/10, EU:C:2012:233, paragraph 41; Zurita García and Choque Cabrera, C‑261/08 and C‑348/08, EU:C:2009:648, paragraph 36; and Schneider, C‑380/01, EU:C:2004:73, paragraph 23. 4 – In recent years, there has been a steady increase of incoming cases. This phenomenon reached its peak in 2013, the year in which the Court delivered its highest ever number of judgments and also received the highest ever number of new cases. In that year, requests for preliminary rulings accounted for almost 60% of those cases (see the Annual Report 2013 of the Court). 5 – To mention but a few: judgments in Pringle, C‑370/12, EU:C:2012:756; Z, C‑363/12, EU:C:2014:159; D., C‑167/12, EU:C:2014:169; International Stem Cell Corporation, C‑364/13, EU:C:2014:2451; and Gauweiler and Others, C‑62/14, pending. 6 – See my Opinion in Joined Cases Venturini, C‑159/12 to C‑161/12, EU:C:2013:529, points 22 to 25. 7 – C‑159/12 to C‑161/12, EU:C:2013:791. 8 – See, to that effect, judgment in Unión dePequeños Agricultores v Council, C‑50/00 P, EU:C:2002:462, paragraphs 44 and 45. 9 – Cf. judgment in Torralbo Marcos, C‑265/13, EU:C:2014:187, paragraph 27 and case-law cited. 10 – On this issue, see my Opinion in Joined Cases Torresi, C‑58/13 and C‑59/13, EU:C:2014:265, points 19 to 81. 11 – See Article 100(2) of the Rules of Procedure of the Court of Justice (‘the Rules of Procedure’). 12 – See, inter alia, order in Viacom, C‑190/02, EU:C:2002:569, paragraph 14 and case-law cited. 13 – The two situations are, in fact, referred to separately in Article 53(2) of the Rules of Procedure, which reads: ‘Where it is clear that the Court has no jurisdiction to hear and determine a case or where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.’ 14 – It should be borne in mind that the relevant facts and applicable national laws are established by the national court in its request for a preliminary ruling. The Court will not, as a rule, question those aspects of the request. See, for example, judgment in Trespa International, C‑248/07, EU:C:2008:607, paragraph 36 and case-law cited. 15 – See, to that effect, Naômé, C., Le renvoi préjudiciel en droit européen — Guide pratique, Larcier, Brussels: 2010 (2nd ed.), pp. 85 and 86. 16 – See order in Killinger v Germany and Others, C‑396/03 P, EU:C:2005:355, paragraphs 15 and 26. 17 – See, for example, order in Kauk v Germany, T‑334/11, EU:T:2011:408. 18 – See, for example, order in Calvi v European Court of Human Rights, C‑171/14 P, EU:C:2014:2281. 19 – See, notably, order in Gluiber v Germany, T‑126/98, EU:T:1998:237. 20 – See, for example, order in Alsharghawi v Council, T‑532/14 R, EU:T:2014:732. 21 – As provided for in Article 19 of the Statute. See, for example, order in ADR Center v Commission, C‑259/14 P, EU:C:2014:2417. 22 – See, among many, judgment in Commission v France, C‑225/98, EU:C:2000:494, paragraph 69. 23 – EU:C:2013:791. 24 – See, inter alia, judgments in USSL nº 47 di Biella, C‑134/95, EU:C:1997:16, paragraph 19; RI.SAN., C‑108/98, EU:C:1999:400, paragraph 23; and Omalet, C‑245/09, EU:C:2010:808, paragraph 12. 25 – See my Opinion in Venturini, EU:C:2013:529, points 32 to 52. 26 – Ibid., points 53 to 55. 27 – Ibid., points 24 and 55. 28 – Ibid., points 38, 42 to 44, 50 and 51. 29 – Opinion of Advocate General Kokott in Joined Cases Airport Shuttle Express, C‑162/12 and C‑163/12, EU:C:2013:617, points 26 to 60. 30 – See judgment in Airport Shuttle Express, C‑162/12 and C‑163/12, EU:C:2014:74, paragraphs 28 to 51 . 31 – See supra point 33. 32 – Order in Tudoran, C‑92/14, EU:C:2014:2051, paragraphs 34 to 42. 33 – Order in Szabó, C‑204/14, EU:C:2014:2220, paragraphs 15 to 25. 34 – Council Directive of 29 April 2004 (OJ 2004 L 261, p. 15). 35 – See C‑122/13, EU:C:2014:59. 36 – See C‑246/14, EU:C:2014:2291. 37 – See, for example, judgment in Romeo, C‑313/12, EU:C:2013:718, paragraph 20 and case-law cited. 38 – Cf. my Opinion in Venturini, EU:C:2013:529, points 42 to 45, and Opinion of Advocate General Kokott in Joined Cases Airport Shuttle Express, EU:C:2013:617, points 54 and 55. 39 – EU:C:2013:791. 40 – See, among many, judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 17, and order in Sociedade Agrícola e Imobiliária da Quinta de S. Paio, C‑258/13, EU:C:2013:810, paragraph 18. 41 – See, inter alia, order in Boncea and Others, C‑483/11 and C‑484/11, EU:C:2011:832, paragraph 29, and judgment in Åkerberg Fransson, EU:C:2013:105, paragraph 19. 42 – See, to that effect, order in Currà and Others, C‑466/11, EU:C:2012:465, paragraph 26, and judgment in Åkerberg Fransson, EU:C:2013:105, paragraph 22. 43 – Judgment in Siragusa, C‑206/13, EU:C:2014:126, paragraph 24. See also, to that effect, the case-law cited. 44 – Ibid., paragraph 25 and case-law cited. 45 – Ibid., paragraph 26, and judgment in Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 35. 46 – Cf. judgment in Venturini, EU:C:2013:791, paragraphs 40 and 63. 47 – See to that effect, among others, judgments in Blanco Pérez and Chao Gómez, C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 44, and Venturini, EU:C:2013:791, paragraph 59. 48 – See judgment in Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 35 and case-law cited. 49 – Ibid., paragraph 36. See also Opinion of Advocate General Sharpston in the same case, EU:C:2013:747, points 36 to 46. 50 – See to that effect, among many, judgments in Hartlauer, C‑169/07, EU:C:2009:141, paragraph 44, and Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 25. 51 – See, among many, judgment in Mora IPR, C‑79/12, EU:C:2013:98, paragraph 35; and orders in Augustus, C‑627/11, EU:C:2012:754, paragraph 8, and Mlamali, C‑257/13, EU:C:2013:763, paragraph 18. 52 – See, to that effect, judgment in Mora IPR, EU:C:2013:98, paragraph 36; and orders in Mlamali, EU:C:2013:763, paragraph 20, and Talasca, C‑19/14, EU:C:2014:2049, paragraph 19. 53 – See, to that effect, judgments in Asemfo, C‑295/05, EU:C:2007:227, paragraph 33, and Mora IPR, EU:C:2013:98, paragraph 37. See also order in Laguillaumie, C‑116/00, EU:C:2000:350, paragraphs 23 and 24. 54 – See order in Talasca, EU:C:2014:2049, paragraph 21. 55 – See supra points 48 and 49. 56 – Ibid. 57 – See judgment in Schaible, C‑101/12, EU:C:2013:661, paragraph 27 and case-law cited. 58 – See, among others, judgments in Commission v DEI, C‑553/12 P, EU:C:2014:2083, paragraphs 41 to 46; MOTOE, C‑49/07, EU:C:2008:376, paragraph 49; and Connect Austria, C‑462/99, EU:C:2003:297, paragraph 80. 59 – The Court has in fact stated that the need for precision, in the order for reference, with regard to the factual and legislative context applies especially in the sphere of competition, which is characterised by complex factual and legal situations: see order in Laguillaumie, EU:C:2000:350, paragraph 19 and case-law cited. 60 – C‑451/03, EU:C:2006:208, paragraphs 20 to 26. 61 – See, inter alia, judgment in Airport Shuttle Express, EU:C:2014:74; and orders in Tudoran, EU:C:2014:2051, and Szabó, EU:C:2014:2220. 62 – See, inter alia, orders in Kárász, C‑199/14, EU:C:2014:2243; Pańczyk, C‑28/14, EU:C:2014:2003; and Široká, C‑459/13, EU:C:2014:2120. 63 – See, inter alia, orders in Herrenknecht, C‑366/14, EU:C:2014:2353; Hunland-Trade, C‑356/14, EU:C:2014:2340; and 3D I, C‑107/14, EU:C:2014:2117. 64 – Cf. Opinion 1/09, EU:C:2011:123, paragraphs 66 to 69. 65 – See supra, point 1.