Lidl GmbH & Co. KG v Freistaat Sachsen.
Date: 2016-06-30
27


The freedom to conduct a business includes, inter alia, the right for any business to be able to freely use, within the limits of its liability for its own acts, the economic, technical and financial resources available to it (judgment of 27 March 2014 in UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 49).
28


The Court has also held that the protection afforded by Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition, as is apparent from the explanations relating to that article, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the interpretation of the Charter (judgments of 22 January 2013 in Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42, and 17 October 2013 in Schaible, C‑101/12, EU:C:2013:661, paragraph 25).
29


The labelling obligation laid down in Article 5(4)(b) of Regulation No 543/2008 is liable to limit the exercise of that freedom to conduct a business, since such an obligation constrains its addressee in a manner which restricts the free use of the resources at his disposal because it obliges him to take measures which may represent a significant cost for him and have a considerable impact on the organisation of his activities (see, to that effect, judgment of 27 March 2014 in UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraph 50).
30


Nevertheless, in accordance with the Court’s case-law, the freedom to conduct a business is not absolute, but must be viewed in relation to its social function (see, inter alia, judgments of 6 September 2012 in Deutsches Weintor, C‑544/10, EU:C:2012:526, paragraph 54, and 22 January 2013 in Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 45 and the case-law cited).
33


In that regard, it is settled case-law that the principle of proportionality requires that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgments of 12 July 2001 in Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 81, and 22 January 2013 in Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 50).
34


Furthermore, the Court has already held that the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest (judgment of 22 January 2013 in Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 46).
44


In that regard, it should be noted that the principle of non-discrimination is a general principle of EU law and, in the field of agriculture, is embodied in the second subparagraph of Article 40(2) TFEU (see judgment of 14 March 2013 in Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 41 and the case-law cited). It follows from the very wording of that article that that provision prohibits any discrimination between producers or consumers within the European Union.
45


It follows from the case-law of the Court that that principle applies not only to producers and consumers, but also to other categories of economic operators who are subject to a common organisation of a market, such as those who market fresh poultrymeat or other types of fresh meat (see, to that effect, judgment of 5 October 1994 in Germany v Council, C‑280/93, EU:C:1994:367, paragraph 68).
46


The principle of non-discrimination requires comparable situations not to be treated differently and different situations not to be treated alike unless such treatment is objectively justified (see, to that effect, judgments of 6 December 2005 in ABNA and Others, C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraph 63, and 14 March 2013 in Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 42).
47


As regards the extent of the monitoring of observance of that principle, it should be noted that the EU legislature enjoys a wide discretion in matters concerning agriculture. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (judgment of 14 March 2013 in Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 43).
49


In that regard, the first subparagraph of Article 40(2) TFEU provides for the use of different mechanisms which may be used to achieve the objectives defined in Article 39 TFEU. Moreover, as is apparent from Regulation No 1234/2007, each common organisation of the market embodies features specific to it. As a result, a comparison of the technical rules and procedures adopted in order to regulate the various sectors of the market cannot constitute a valid basis for the purpose of proving the complaint of discrimination between dissimilar products which are subject to different rules (see, to that effect, judgment of 28 October 1982 in Lion and Others, 292/81 and 293/81, EU:C:1982:375, paragraph 24).