Asociación Nacional de Expendedores de Tabaco y Timbre (ANETT) v Administración del Estado.
Date: 2012-04-26
16. In this respect, it should be noted that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may 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, inter alia, Joined Cases C‑222/05 to C‑225/05, van der Weerd and Others  [2007] ECR I‑4233, paragraph 22, and Case C‑158/08 Pometon [2009] ECR I‑4695, paragraph 13).
22. In this respect, according to the case‑law of the Court, the rules relating to the existence and the operation of a monopoly must be examined in the light of the provisions of Article 37 TFEU, which are specifically applicable to the exercise, by a domestic commercial monopoly, of its exclusive rights (see, inter alia, Case C‑189/95 Franzén  [1997] ECR I‑5909, paragraph 35, and Case C‑170/04 Rosengren and Others  [2007] ECR I‑4071, paragraph 17).
23. However, the effect on trade within the Union of the other provisions of the domestic legislation, which are separable from the operation of the monopoly although they have a bearing upon it, must be examined in the light of Article 34 TFEU (see, inter alia, Franzén , paragraph 36, and Rosengren and Others , paragraph 18).
27. Consequently, this prohibition does not concern the exercise of the specific purpose of the monopoly in question and thus cannot be considered as relating to the very existence of the monopoly (see, by analogy, Rosengren and Others , paragraph 22).
29. However, and even if, in contrast to the legislation at issue in the proceedings which gave rise to the judgment in Rosengren and Others , the prohibition at issue in the main proceedings does not affect private individuals but rather the licensees under the monopoly in question, namely the tobacco retailers, such a prohibition is separable from the operation of the monopoly as it relates not to the selling arrangements for retail sale of tobacco products on the Spanish territory but to the upstream market in those products. It does not aim to organise the monopoly’s system of product selection. Likewise, the prohibition does not target either the sale network of the monopoly in question or the marketing or advertising of the products distributed by the monopoly (see, by analogy, Rosengren and Others, paragraph 24).
32. According to settled case‑law, all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of Article 34 TFEU (see, inter alia, Case 8/74 Dassonville [1974] ECR 837, paragraph 5, and Case C‑110/05 Commission v Italy  [2009] ECR I‑519, paragraph 33).
33. It is also apparent from settled case-law that Article 34 TFEU reflects the obligation to comply with the principles of non-discrimination and of mutual recognition of products lawfully manufactured and marketed in other Member States, as well as the principle of ensuring free access of EU products to national markets (see Commission v Italy , paragraph 34, and Case C‑108/09 Ker-Optika [2010] ECR I‑12213, paragraph 48).
34. Accordingly, measures adopted by a Member State the object or effect of which is to treat goods coming from other Member States less favourably are to be regarded as measures having an effect equivalent to quantitative restrictions, as are rules that lay down requirements to be met by such goods, even if such rules apply to all products alike (see Commission v Italy , paragraphs 35 and 37 and Ker-Optika , paragraph 49).
35. Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept ( Commission  v Italy , paragraph 37, and Ker-Optika , paragraph 50).
45. According to settled case-law, an obstacle to the free movement of goods may be justified on one of the public interest grounds set out in Article 36 TFEU or in order to meet overriding requirements. In either case, the national provision must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it (see, inter alia, Commission v Italy , paragraph 59, and Ker-Optika , paragraph 57).
Observations submitted to the Court
50. With regard, first of all, to the argument of the Spanish and Italian Governments, based on the necessity of ensuring fiscal, customs, and health control of tobacco products, it should be noted that it is for the national authorities, where they adopt a measure derogating from a principle enshrined by European Union Law, to show in each individual case that that measure is appropriate for securing the attainment of the objective relied upon and does not go beyond what is necessary to attain it. The reasons invoked by a Member State by way of justification must thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State and by specific evidence substantiating its arguments (see Case C‑8/02 Leichtle  [2004] ECR I‑2641, paragraph 45, and Case C‑73/08 Bressol and Others [2010] ECR I‑2735, paragraph 71).
53. Next, the Spanish Government cannot claim that the restriction in question may be justified on the ground that the possibility of importing tobacco products would create an excessive competitive advantage for tobacco retailers. Such a consideration is of a purely economic dimension. However, according to settled case-law, grounds of a purely economic nature cannot constitute overriding reasons in the public interest justifying a restriction of a fundamental freedom guaranteed by the Treaty (see Case C‑254/98 TK-Heimdienst  [2000] ECR I‑151, paragraph 33, and Case C‑109/04 Kranemann [2005] ECR I‑2421, paragraph 34).