Keywords

Summary



Keywords

Freedom of movement for persons – Freedom of establishment – Restrictions – Legislation restricting the siting and size of large retail establishments in particular locations

(Art. 43 EC)

Summary

A Member State fails to fulfil its obligations under Article 43 EC by adopting and/or by maintaining in force provisions which:

- prohibit the setting up of large retail establishments outside the consolidated urban areas of a limited number of municipalities;

- restrict the setting up of new hypermarkets to a limited number of districts and require such new hypermarkets not to account for more than 9% of estimated expenses for staple supplies for that district in 2009 and 7% of estimated expenses for non-staple supplies;

- require the application of ceilings as regards the market share and the impact on existing retail trade, above which it is impossible to open large retail establishments and/or medium-sized retail establishments, and

- govern the composition of the Retail Facilities Committee, consultation of which is obligatory in order to obtain a specific licence to open a large retail establishment, by ensuring that interests of existing retail trade are represented and by failing to ensure that associations active in the field of environmental protection, or interest groups working towards consumer protection, are represented, since those provisions, taken as a whole, have the effect of hindering or of rendering less attractive the exercise by economic operators from other Member States of their activities on the territory concerned through a permanent establishment and thus of affecting their establishment in the national market and accordingly constitute a restriction on the freedom of establishment within the meaning of Article 43 EC.

Such restrictions are not justified by matters of environmental protection, town and country planning or consumer protection.

The obligation to take account, for the purposes of granting such a licence, of the existence of retail facilities in the area concerned and the impact of a new establishment on the commercial structure of that area concerns the impact on existing traders and the market structure, not consumer protection. The same is true of the obligation in the context of the procedure for the grant of that licence, to obtain a market share report which is to be binding if unfavourable and which must be unfavourable if the market share exceeds a certain value. In that regard, since those provisions require the application of ceilings as regards the market share and the impact on existing retail trade, above which it is impossible to open large retail establishments and/or medium-sized retail establishments, such considerations cannot, being purely economic, constitute an overriding reason in the public interest.

Furthermore, as the only sectoral interest represented in the Retail Facilities Committee is that of the existing local trade, a body composed in that manner, with no representation of environmental or consumer interests, but with representation of potential competitors of the applicant for a licence, cannot constitute an appropriate instrument for pursuing objectives relating to town and country planning, environmental protection or consumer protection.

(see paras 70, 72, 85, 95-98, 111, operative part 1)