Memoria Srl and Antonia Dall'Antonia v Comune di Padova.
Date: 2018-11-14
20


In accordance with Article 94 of the Rules of Procedure, it is for the referring court to indicate to the Court in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with Articles 49 and 56 TFEU that makes their interpretation necessary for it to give judgment in that dispute (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 55).
23


It must be recalled that a dispute, despite the fact that it is between nationals of a single Member State, must be considered to have a connecting factor with Articles 49 and 56 TFEU that makes the interpretation of those provisions necessary for it to give judgment in that dispute, where national law requires the referring court to grant the same rights to those nationals as the rights which a national of another Member State in the same situation would derive from EU law (see, to that effect, judgments of 21 February 2013, Ordine degli Ingegneri di Verona e Provincia and Others, C‑111/12, EU:C:2013:100, paragraph 35, and of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 52).
33


In that regard, it must be recalled that national courts have the widest discretion in referring matters to the Court if they consider that a case pending before them raises questions involving the interpretation of provisions of EU law, or consideration of their validity, which are necessary for the resolution of the case before them and, in particular, that they are free to exercise that discretion at whatever stage of the proceedings they consider appropriate (judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 17 and the case-law cited).
44


Nevertheless, in that regard, it must be noted that only the first of those two provisions is applicable in the main proceedings. Where an operator intends actually to pursue its economic activity by means of a stable arrangement and for an indefinite period, its situation must be examined in the light of freedom of establishment, as defined in Article 49 TFEU (see, in particular, judgments of 29 September 2011, Commission v Austria, C‑387/10, not published, EU:C:2011:625, paragraph 22, and of 23 February 2016, Commission v Hungary, C‑179/14, EU:C:2016:108, paragraphs 148 to 150).
47


From the outset, it should be recalled that Article 49 TFEU precludes any national measure constituting a restriction on the freedom of establishment, unless such a restriction is justified by overriding reasons in the public interest (see, to that effect, inter alia, judgment of 5 December 2013, Venturini and Others, C‑159/12 to C‑161/12, EU:C:2013:791, paragraphs 30 and 37).
48


In the first place, in accordance with settled case-law, any national measure which, albeit applicable without discrimination on grounds of nationality, prohibits, hinders or renders less attractive the exercise by EU nationals of the freedom of establishment guaranteed by the Treaty constitutes a restriction within the meaning of Article 49 TFEU (see, to that effect, judgment of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 21).
51


In the second place, according to settled case-law, a restriction on freedom of establishment may be justified, if applied without discrimination on grounds of nationality, by overriding reasons in the public interest, provided that it is appropriate for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it (see, to that effect, inter alia, judgment of 9 March 2017, Piringer, C‑342/15, EU:C:2017:196, paragraph 53 and the case-law cited).
52


More specifically, it must also be recalled that national legislation is appropriate for ensuring attainment of the objective relied upon only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner (see, to that effect, judgments of 10 March 2009, Hartlauer, C‑169/07, EU:C:2009:141, paragraph 55, and of 23 December 2015, Hiebler, C‑293/14, EU:C:2015:843, paragraph 65).
54


In that regard, as regards, first, the justification based on the protection of public health, it admittedly follows from settled case-law of the Court that the protection of public health is one of the overriding reasons in the public interest recognised by EU law and that Member States have a wide margin of discretion in this area (see, to that effect, judgment of 1 June 2010, Blanco Pérez and Chao Gómez, C‑570/07 and C‑571/07, EU:C:2010:300, paragraphs 44, 68 and 106).