Corporación Dermoestética SA v To Me Group Advertising Media.
Date: 2008-07-17
20. First of all, as regards the alleged failure on the part of the Giudice di Pace di Genova to take account of the entry into force of Decree Law No 223/2006 for the purpose of resolving the dispute in the main proceedings, according to established case‑law, it is not for the Court of Justice to rule on the applicability of provisions of national law which are relevant to the outcome of such proceedings, but the Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the legislative context, as described in the order for reference, in which the question put to it is set (see, to that effect, Case C 475/99 Ambulanz Glöckner  [2001] ECR I-8089, paragraph 10; Case C 153/02 Neri  [2003] ECR I-13555, paragraphs 34 and 35; and Case C‑28/04 Tod’s and Tod’s France  [2005] ECR I‑5781, paragraph 14).
21. In the procedure laid down by Article 234 EC, the functions of the Court of Justice and those of the referring court are clearly separate, and it falls exclusively to the latter to interpret national legislation (see, to that effect, Case C‑295/97 Piaggio  [1999] ECR I‑3735, paragraph 29 and the case‑law cited).
23. In second place, a presumption of relevance attaches to questions referred by the national courts for a preliminary ruling, which can be rebutted only in exceptional cases, in particular where it is quite obvious that the interpretation sought of the provisions of Community law referred to in those questions bears no relation to the actual facts of the main action or to its purpose (see, inter alia, Case C‑415/93 Bosman  [1995] ECR I‑4921, paragraph 61; Case C‑355/97 Beck and Bergdorf  [1999] ECR I‑4977, paragraph 22; and Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I‑4233, paragraph 22).
27. In any event, the order for reference does not set out either the relevant provisions of the code of conduct in question or a description of the interpretative practice adopted by Fnomceo (see, to that effect, Joined Cases C‑338/04, C‑359/04 and C‑360/04 Placanica and Others  [2007] ECR I‑1891, paragraph 34).
31. As the Advocate General observes at point 58 of his Opinion, rules on advertising such as those laid down by Law No 175/1992 entail a prohibition on advertising which goes beyond that laid down in Article 14(1) of Directive 89/552. Although, pursuant to Article 3(1) of that directive, the Member States remain free to lay down more detailed or stricter rules in the areas covered by the directive, when exercising that right, they must respect the basic freedoms guaranteed by the EC Treaty (see, to that effect, Case C‑6/98 ARD  [1999] ECR I‑7599, paragraph 49).
32. The Court has consistently held that restrictions on the freedom of establishment and the freedom to provide services referred to in Articles 43 EC and 49 EC respectively are measures which prohibit, impede or render less attractive the exercise of such freedoms (see, to that effect, Case C‑439/99 Commission  v Italy  [2002] ECR I‑305, paragraph 22; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 31; Case C‑65/05 Commission  v Greece  [2006] ECR I‑10341, paragraph 48; and Case C‑248/06 Commission  v Spain  [2008] ECR I‑0000, paragraph 21).
33. Rules on advertising such as those laid down in Law No 175/1992, in so far as they permit, subject to certain conditions, broadcasting on local television networks of advertisements for medical and surgical treatments provided by private health care establishments and which effectively prohibit such advertising on national television networks constitute, for companies established in Member States other than the Italian Republic, such as Dermoestética, a serious obstacle to the pursuit of their activities by means of a subsidiary established in that Member State. Those rules are, therefore, liable to make it more difficult for such economic operators to gain access to the Italian market (see, by analogy, Case C‑422/02 CaixaBank France [2004] ECR I‑8961, paragraphs 12 to 14, and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others  [2006] ECR I‑11421, paragraph 58). Moreover, in so far as they prohibit companies such as Dermoestética from using services for broadcasting television advertisements, rules on advertising such as those laid down by Law No 175/1992 constitute a restriction on the freedom to provide services.
35. However, according to the case‑law of the Court, such measures may be justified if they fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by overriding reasons based on the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain that objective (see Case C‑19/92 Kraus  [1993] ECR I‑1663, paragraph 32; Case C‑55/94 Gebhard  [1995] ECR I‑4165, paragraph 37; Case C‑424/97 Haim  [2000] ECR I‑5123 paragraph 57; Case C‑108/96 Mac Quen and Others  [2001] ECR I‑837, paragraph 26; and Case C‑243/01 Gambelli and Others  [2003] ECR I‑13031, paragraphs 64 and 65).
39. With regard, in third place, to the extent to which it is possible for a set of rules, such as those laid down in the legislation at issue in the main proceedings, to guarantee that the objective of protection of public health is attained, by introducing a measure resulting in a prohibition on advertising medical and surgical treatments on national television networks while at the same time making it possible to broadcast such advertisements on local television networks, such rules exhibit an inconsistency which the Italian Government has not attempted to justify and cannot therefore properly attain the public health objective which they seek to pursue.
40. Consequently, national legislation, such as that at issue in the main proceedings, cannot be regarded as being appropriate for the purpose of securing the attainment of the objective of public health and constitutes an unjustified restriction for the purposes of Article 43 EC and 49 EC.