Airport Shuttle Express scarl and Giovanni Panarisi (C-162/12) and Società Cooperativa Autonoleggio Piccola arl and Gianpaolo Vivani (C-163/12) v Comune di Grottaferrata.
Date: 2014-02-13
24. However, it should be borne in mind that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court, require the Advocate General’s involvement. In carrying out that task, the Advocate General may, where appropriate, analyse a request for a preliminary ruling by placing it within a context which is broader than that strictly defined by the referring court or by the parties to the main proceedings. Since the Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based, it is not absolutely necessary to reopen the oral procedure, under Article 83 of the Rules of Procedure, whenever the Advocate General raises a point of law which was not the subject of debate between the parties (see, inter alia, Case C‑361/06 Feinchemie Schwebda and Bayer CropScience  [2008] ECR I‑3865, paragraph 34; Case C‑535/11 Novartis Pharma  [2013] ECR, paragraph 31; and Case C‑361/12 Carratù  [2013] ECR, paragraph 19).
26. As regards the Court’s power under Article 101 of the Rules of Procedure to send the referring court a request for clarification, it emerges from settled case-law – now reflected in Article 94(b) and (c) of those Rules – that, as the order for reference is the basis of the procedure for referring questions to the Court of Justice for a preliminary ruling, it is essential for the national court to explain, in that order for reference, the factual and legislative context of the dispute before it and to give at the very least some explanation of the reasons for the choice of the provisions of EU law which it requires to be interpreted and of the link that it establishes between those provisions and the national legislation applicable to the dispute (see, to that effect, inter alia, the order in Case C‑116/00 Laguillaumie  [2000] ECR I‑4979, paragraphs 23 and 24; Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 33; and Case C‑79/12 Mora IPR  [2013] ECR, paragraph 37).
29. In view of the wording of the questions referred, it should be borne in mind from the outset that in the context of Article 267 TFEU the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with EU law (see, inter alia, Case C‑107/98 Teckal  [1999] ECR I‑8121, paragraph 33, and Case C‑237/04 Enirisorse [2006] ECR I‑2843, paragraph 24 and the case-law cited).
30. That being so, it is settled case-law that, if questions have been improperly formulated or if they go beyond the scope of the powers conferred on the Court by Article 267 TFEU, the Court is free to extract from all the information provided by the referring court and, in particular, from the statement of grounds in the order for reference the elements of EU law which, having regard to the subject-matter of the dispute, require interpretation (see, inter alia, Case C‑384/08 Attanasio Group  [2010] ECR I‑2055, paragraph 18 and the case-law cited). To that end, the Court may have to reformulate the questions referred to it (see, inter alia, Attanasio Group , paragraph 19; Case C‑243/09 Fuß [2010] ECR I‑9849, paragraph 39 and the case-law cited; and Case C‑249/11 Byankov  [2012] ECR, paragraph 57 and the case-law cited).
33. Also, in addition to Articles 49 TFEU, 101 TFEU and 102 TFEU, the questions referred mention Articles ‘3 TEU, 4 TEU, 5 TEU and 6 TEU’. Despite the vagueness of the orders for reference as regards the competition rules set out in Articles 101 TFEU and 102 TFEU, it is possible to infer from this (see, by analogy, in particular, Byankov , paragraph 58 and the case-law cited) that the referring court may in fact be seeking an interpretation, with regard to the facts of the cases before it, of those provisions read in conjunction with Article 4(3) TEU and Article 106 TFEU respectively.
37. As regards, first, the EU competition rules, although it is true that, in themselves, Articles 101 TFEU and 102 TFEU are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those provisions, read in conjunction with Article 4(3) TEU, which lays down a duty to cooperate, none the less require Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see Case 13/77 GB‑Inno-BM  [1977] ECR I‑2115, paragraph 31; Case C‑198/01 CIF  [2003] ECR I‑8055, paragraph 45 and the case-law cited; and Case C‑338/09 Yellow Cab Verkehrsbetrieb  [2010] ECR I‑13927, paragraph 25).
38. However, the Court has consistently held that the need to provide an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legal context of its questions or, at the very least, to explain the factual circumstances on which those questions are based. Those requirements are of particular importance in the field of competition, which is characterised by complex factual and legal situations (see, inter alia, Attanasio Group , paragraph 32 and the case-law cited, and Joined Cases C‑357/10 to C‑359/10 Duomo Gpa and Others  [2012] ECR, paragraph 22).
39. In the present cases, however, the orders for reference do not provide the Court with the factual and legal information necessary for it to be able to determine the circumstances in which legislation such as that at issue in the main proceedings might fall within the scope of Articles 101 TFEU and 102 TFEU, read in conjunction with Article 4(3) TEU and Article 106 TFEU respectively. In particular, those orders do not provide any explanation of the connection which the referring court sees between those provisions and the disputes in the main proceedings or their subject-matter.
40. In such circumstances, the questions referred must be declared inadmissible to the extent that they seek an interpretation of those provisions (see, by analogy, inter alia, Duomo Gpa and Others , paragraph 24).
41. As regards, secondly, Article 49 TFEU, it is common ground that all elements of the disputes before the referring court are confined within a single Member State. In those circumstances, it is necessary to determine whether the Court has jurisdiction in the present cases to give a ruling on that provision (see, by analogy, inter alia, Case C‑380/05 Centro Europa 7  [2008] ECR I‑349, paragraph 64; Case C‑245/09 Omalet  [2010] ECR I‑13771, paragraphs 9 and 10; and Duomo Gpa and Others , paragraph 25).
42. Legislation such as that at issue in the main proceedings, which, according to its wording, applies without distinction to operators established in the Italian Republic and to operators established in other Member States, is generally likely to fall within the scope of the provisions on the fundamental freedoms established by the FEU Treaty only to the extent to which it applies to situations related to intra‑Community trade (see, to that effect, inter alia, Joined Cases C‑321/94 to C‑324/94 Pistre and Others [1997] ECR I‑2343, paragraph 45; Case C‑448/98 Guimont  [2000] ECR I‑10663, paragraph 21; and Duomo Gpa and Others , paragraph 26 and the case‑law cited).
43. As regards, more specifically, Article 49 TFEU, the Court has consistently held that that provision cannot be applied to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member State (see, to that effect, inter alia, Case 20/87 Gauchard  [1987] ECR 4879, paragraph 12; Case 204/87 Bekaert  [1988] ECR 2029, paragraph 12; Case C‑212/06 Government of the French Community and Walloon Government  [2008] ECR I‑1683, paragraph 33; and Case C‑84/11 Susisalo and Others  [2012] ECR, paragraph 18 and the case-law cited).
44. It is true that, according to the line of authority devolving from Guimont , the Court’s answer to questions concerning fundamental freedoms of the European Union may, even in a purely internal situation, nevertheless be of use to the referring court, especially if its national law were to require it to allow a national to enjoy the same rights as those which a national of another Member State would derive from EU law in the same situation (see, inter alia, Case C‑393/08 Sbarigia  [2010] ECR I‑6337, paragraph 23, and Susisalo and Others , paragraph 20 and the case-law cited).
48. The cases before the referring court are therefore similar to the case that gave rise to the judgment in Sbarigia , which concerned a decision as to whether a particular pharmacy should be exempted from the obligation to observe normal opening hours and in which there was accordingly nothing to indicate how such a decision might affect economic operators coming from other Member States (see Joined Cases C‑159/12 to C‑161/12 Venturini and Others  [2013] ECR, paragraph 27).