Ottica New Line di Accardi Vincenzo v Comune di Campobello di Mazara.
Date: 2013-09-26
16. The legislation at issue in the main proceedings governs only the conditions for establishing an optician’s shop in a part of Italian territory, with a view to a stable and continuous participation of such professionals in the economic life of that Member State. In those circumstances, the provisions concerning the freedom to supply services, which apply only if those relating to the freedom of establishment do not apply, are not relevant (see, by analogy, Case C‑384/08 Attanasio Group  [2010] ECR I‑2055, paragraph 39 and the case-law cited).
19. First, the Court has already held that the intervention of opticians was likely to limit certain health risks and thus ensures the protection of public health (see, to that effect, Case C-108/09 Ker-Optika  [2010] ECR I-2213, paragraph 64).
24. Third, the Court notes that, in accordance with Article 168(7) TFEU, as interpreted in its case‑law, European Union law does not detract from the power of the Member States to adopt provisions aimed at organising their health services. In exercising that power, however, the Member States must comply with European Union law, in particular the provisions of the TFEU on the freedom of establishment, which prohibit the Member States from introducing or maintaining unjustified restrictions on the exercise of that freedom in the healthcare sector (see, to that effect, Joined Cases C‑171/07 and C‑172/07 Apothekerkammer des Saarlandes and Others  [2009] ECR I‑4171, paragraph 18, and Blanco Pérez and Chao Gómez , paragraph 43).
Whether there is a restriction on the freedom of establishment
25. It is settled case-law that any national measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the freedom of establishment guaranteed by the Treaty constitutes a restriction within the meaning of Article 49 TFEU (Case C-140/03 Commission  v Greece  [2005] ECR I-3177, paragraph 27, and Blanco Pérez and Chao Gómez , paragraph 53).
26. A national rule which makes the establishment of a service provider from another Member State conditional upon the issue of prior authorisation falls within that category, since it is capable of hindering the exercise by that service provider of the freedom of establishment by preventing it from freely pursuing its activities through a fixed place of business. First, that service provider may have to bear the additional administrative and financial costs involved in any grant of such an authorisation. Second, the prior authorisation system excludes from the pursuit of self-employed activity economic operators who do not satisfy predetermined requirements, compliance with which is a condition for the issue of that authorisation (Case C‑169/07 Hartlauer  [2009] ECR I-1721, paragraphs 34 and 35, and Blanco Pérez and Chao Gómez , paragraph 54).
27. Moreover, national legislation constitutes a restriction where it makes the pursuit of an activity subject to a condition which is linked to the economic or social needs for that activity, since it tends to limit the number of service providers ( Hartlauer , paragraph 36, and Blanco Pérez and Chao Gómez , paragraph 55).
33. It is settled case-law that restrictions on the freedom of establishment which are applicable without discrimination on grounds of nationality may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective pursued and do not go beyond what is necessary for attaining that objective ( Hartlauer , paragraph 44, and Apothekerkammer des Saarlandes and Others , paragraph 25).
34. In that regard, it is clear form Article 52(1) TFEU that restrictions on the freedom of establishment may be justified by the general objective of the protection of public health (see, to that effect, Hartlauer , paragraph 46, and Apothekerkammer des Saarlandes and Others , paragraph 27).
35. It is also apparent from the Court’s case‑law that that general objective may seek, more specifically, to ensure even distribution of healthcare providers throughout the national territory (see, to that effect, Blanco Pérez and Chao Gómez , paragraphs 64, 70 and 78).
36. In pursuing such an objective, the establishment of service providers, such as pharmacies, may be subject to planning. That may include prior authorisation for the establishment of a pharmacy, where that planning proves indispensable for filling in possible gaps in access to public health services and for avoiding the duplication of structures, so as to ensure the provision of public health care which is adapted to the needs of the population, which covers the entire territory and which takes account of geographically isolated or otherwise disadvantaged regions (see, to that effect, Blanco Pérez and Chao Gómez , paragraph 70).
37. Those principles appear to be transposable to the establishment of opticians’ shops, in so far as, as noted in paragraph 20 above, the opticians at issue in the main proceedings provide services aimed at assessing, maintaining or restoring the state of health of patients, with the result that those services are encompassed by the protection of public health.
40. Next, in so far as concerns the rule that only one optician’s shop may be established per 8 000 residents, the Court has already held that national authorities may adopt measures to avoid the risk of healthcare providers converging on localities in the territory concerned which are considered to be attractive. Thus, national authorities may opt, in the light of that risk, for legislation which provides that only one service provider may be established for a given population density, since such a rule seeks to encourage such service providers to establish premises in parts of the national territory where access to healthcare is lacking (see, to that effect, Blanco Pérez and Chao Gómez , paragraphs 72 to 77).
42. Finally, as regards the rule imposing a minimum distance between two opticians’ shops, it is apparent from the Court’s case‑law that, together with the rule referred to in the preceding paragraph, this requirement leads members of the public to be more confident that they have a access to a healthcare provider nearby and thus also contributes to a better protection of public health in the territory concerned (see, to that effect, Blanco Pérez and Chao Gómez , paragraphs 81 and 82).
44. None the less, the Court notes that it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved. Since the level may vary from one Member State to another, Member States should be allowed a margin of discretion (see, to that effect, Apothekerkammer des Saarlandes and Others , paragraph 19, and Blanco Pérez and Chao Gómez , paragraph 44).
47. None the less, it is also necessary that the way in which Regional Law No 12/2004 pursues those objectives is coherent. According to the Court’s case-law, the national legislation as a whole and the various relevant rules are appropriate for ensuring attainment of the objective relied upon only if they genuinely reflect a concern to attain that objective in a consistent and systematic manner (see, to that effect, Hartlauer , paragraph 55, and Apothekerkammer des Saarlandes and Others , paragraph 42).
48. In that regard, it is ultimately for the national court, which has sole jurisdiction to assess the facts and interpret the national legislation, to determine whether and to what extent Regional Law No 12/2004 satisfies those conditions (see, to that effect, Case 171/88 Rinner-Kühn  [1989] ECR 2743, paragraph 15, and Joined Cases C-4/02 and C-5/02 Schönheit and Becker  [2003] ECR I-12575, paragraphs 82 and 83).
49. However, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (Case C‑187/00 Kutz-Bauer  [2003] ECR I-2741, paragraph 52, and Schönheit and Becker , paragraph 83).
53. In addition, the competent authorities may authorise the establishment of an additional optician’s shop only after receiving a mandatory opinion from a committee of the Chamber of Commerce which is made up, according to the information submitted to the Court, of representatives of opticians active on the market, namely direct competitors of those seeking establishment.
54. In those circumstances, Regional Law No 12/2004 risks, as of its implementation, failing to ensure an even distribution of opticians’ shops throughout the entire territory concerned and, consequently, an equal level of protection of public health throughout that territory.