EN Official Journal of the European Union C 285/29

Action brought on 16 September 2008 — Commission of the European Communities v Kingdom of Spain

(Case C-400/08)

(2008/C 285/48)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (represented by: E. Traversa, R. Vidal Puig acting as Agents, and C. Fernández Vicién and I. Moreno-Tapia Rivas, lawyers)

Defendant: Kingdom of Spain

Form of order sought

— declare that, by imposing restrictions on the establishment of shopping centres, deriving from Law 7/1996 on retail commerce and the legislation of the Autonomous Community of Catalonia applicable in the matter (Law 18/2005 on trading establishments, Decree 378/2006 implementing Law 18/2005, and Decree 379/2006 approving the new sectional territorial plan for trading establishments), the Kingdom of Spain has failed to fulfil its obligations under Article 43 EC;

— order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Spanish and Catalan legislation at issue (Law 7/1996, Catalan Law 28/2005, Catalan Decrees 378/2006 and 379/2006) requires any operator wishing to start, extend, change its activity, transfer or assign a large shopping centre, to obtain a licence from the Generalidad, in addition to the compulsory municipal license required to start up an activity, the latter being intended to verify that the establishment conforms to the urban standards in force. The issue of commercial licences is subject to set of criteria, which include the compatibility of the project with the urban plan for commercial establishments (so that no establishment can be authorised if it does not comply with all the decisions in the plan), the location of the project in a consolidated urban area and the extent of market penetration by the applicant undertaking.

The Commission takes the view that the Spanish and Catalan legislation at issue constitute unjustified restrictions on the freedom of establishment within the meaning of Article 43 EC for the following reasons:

1. The requirement of a commercial license — in addition to the municipal license — issued according to certain criteria which relate not only to planning and the environment, but also to the potential economic repercussions of the creation certain kinds of large scale shopping centres on the competitive structure of the distribution market, and to the existence of a ‘market requirement’, makes the establishment of certain kinds of large scale shopping centres very difficult.

2. The national legislation concerned has a discriminatory effect in that it facilitates the establishment of smaller shopping centres (which correspond to the traditional commercial distribution structure in Catalonia and, therefore, local commerce) as compared to the establishment of large shopping centres (which correspond to the distribution model used by companies from other Community States).

The Commission takes the 46 of the EC Treaty (public policy, public security or public health) which, moreover, have not been relied on by the national authorities.

In the Commission's opinion, the justifications relied on by the Spanish and Catalan authorities — protection of consumers (protection of small businesses in order to guarantee competitive supply in each market, protection of the environment and urban areas) cannot be accepted for the following reasons:

1. The criteria laid down by the legislation at issue is not in fact intended to protect consumers as the national authorities state, but to favour the small business sector to the detriment of the big names of commercial distribution. Therefore, the measures are an inappropriate means of attaining the alleged objective as in reality they have an economic purpose.