Opinion of the Advocate General — ECLI:EU:C:2008:62
Date: 2008-01-31
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Admissibility – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer (Art. 234 EC) 2. Freedom of movement for persons – Freedom of establishment – Freedom to provide services (Arts 43 EC, 48 EC, 49 EC and 55 EC; Council Directive 89/552, Arts 3(1) and 14(1)) 1. It is not for the Court of Justice to rule on the applicability of provisions of national law which are relevant to the outcome of proceedings, but the Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the legislative context, as described in the order for reference, in which the question put to it is set. Moreover, a presumption of relevance attaches to questions referred by the national courts for a preliminary ruling, which can be rebutted only in exceptional cases, in particular where it is quite obvious that the interpretation sought of the provisions of Community law referred to in those questions bears no relation to the actual facts of the main action or to its purpose. That is the case as regards questions in respect of which the referring court fails to state the connection between the aspects of national law and the provisions of Community law which it asks the Court to interpret and fails to explain in what way the Court’s examination of a code of conduct for medical practitioners concerning the practice adopted in interpreting the laws on advertisements for medical and surgical treatments of a cosmetic nature would be of assistance in resolving the dispute in the main proceedings. (see paras 20, 23, 26) 2. Articles 43 EC and 49 EC, read in conjunction with Articles 48 EC and 55 EC, must be interpreted as precluding national legislation which prohibits advertising on national television networks for medical and surgical treatments of a cosmetic nature carried out in private health care establishments while at the same time permitting such advertising, subject to certain conditions, on local television networks. Such rules on advertising entail a prohibition which goes beyond that laid down in Article 14(1) of Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities. Although, pursuant to Article 3(1) of that directive, the Member States remain free to lay down more detailed or stricter rules in the areas covered by the directive, when exercising that right, they must respect the basic freedoms guaranteed by the EC Treaty. Such rules on advertising are liable to impede or render less attractive the exercise of the basic freedoms guaranteed by Articles 43 EC and 49 EC. Thus, for companies established in Member States other than the Member State in question, such a prohibition is a serious obstacle to the pursuit of their activities by means of a subsidiary established in that Member State and is, therefore, liable to make it more difficult for such economic operators to gain access to the market of that Member State. Moreover, such rules on advertising constitute a restriction on the freedom to provide services in that they prevent companies in other Member States from using services for broadcasting television advertisements. While, in principle, rules regulating television advertising for medical and surgical treatments provided by private health care establishments can be justified in the light of the objective of protection of public health, rules which prohibit the broadcasting of such advertisements on national television networks, while at the same time permitting them, subject to certain conditions, on local television networks, are inconsistent and cannot therefore properly attain the public health objective which they seek to pursue. (see paras 31-33, 37-39, operative part)