Emanuela Sbarigia v Azienda USL RM/A and Others.
Date: 2010-07-01
19. In that regard, it must be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see Case C‑169/07 Hartlauer  [2009] ECR I‑1721, paragraph 24 and case-law cited).
20. It follows that questions relating to European Union law enjoy a presumption of relevance. The Court may thus refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 25, and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 22).
23. As regards next the arguments raised by Assiprofar, the Ordine dei Farmacisti della Provincia di Roma and the Greek Government, according to which all aspects of the main proceedings are confined within one Member State, it is apparent from the case-law of the Court that its answer may be useful to the referring court even in such circumstances, in particular 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 European Union law in the same situation (see, inter alia, Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 29; Cipolla and Others , paragraph 30; and Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez [2010] ECR I‑0000, paragraph 36).
26. As the Advocate General stated in points 72 and 73 of his Opinion, it is apparent from settled case-law that a national of a Member State, who pursues a professional activity on a stable and continuous basis in another Member State, comes under the chapter of the EC Treaty relating to the right of establishment and not that relating to services (see, inter alia, Case 2/74 Reyners  [1974] ECR 631, paragraph 21, and Case C‑55/94 Gebhard  [1995] ECR I‑4165, paragraph 28).
29. That said, it is apparent that the other provisions of Community law relating to competition of which the referring court seeks an interpretation, in particular Articles 81 EC to 86 EC, are also manifestly inapplicable in a context such as that of the main proceedings.
31. As regards, secondly, Articles 81 EC and 82 EC, although it is true that they are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those articles, read in conjunction with Article 10 EC, 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 Cipolla and Others , paragraph 46 and case‑law cited).
32. In that regard, however, it is quite obvious that the national legislation at issue in the main proceedings, relating to the possible grant of an exemption in relation to the opening periods of a pharmacy located in a specific municipal area of the municipality of Rome, cannot, in itself or by its application, affect trade between Member States within the meaning of Articles 81 EC and 82 EC (see, a contrario , Case 8/72 Vereniging van Cementhandelaren  v Commission  [1972] 977, paragraph 29; Case C‑179/90 Merci convenzionali porto di Genova  [1991] ECR I‑5889, paragraphs 14 and 15; and Case C‑35/99 Arduino  [2002] ECR I‑1529, paragraph 33).
38. It follows from all of the foregoing that the present request for a preliminary ruling must be regarded as inadmissible.
Costs