European Commission v Kingdom of Spain.
Date: 2011-03-24
35. As a preliminary point, it should be noted that the Court may of its own motion examine whether the conditions laid down in Article 226 EC for bringing an action for failure to fulfil obligations are satisfied (see Case C‑487/08 Commission  v Spain  [2010] ECR I‑0000, paragraph 70 and the case-law cited).
36. It should also be borne in mind that, under Article 38(1)(c) of the Rules of Procedure of the Court of Justice and the case-law relating to that provision, the application initiating proceedings must state the subject-matter of the dispute and a summary of the pleas in law on which the application is based and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and of fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the heads of claim to be set out unambiguously so that the Court does not rule ultra petita  or indeed fail to rule on a claim (see Case C‑211/08 Commission  v Spain  [2010] ECR I‑0000, paragraph 32 and the case-law cited).
58. It should be borne in mind that, in accordance with settled case-law, in proceedings for failure to fulfil obligations under Article 226 EC, it is incumbent upon the Commission to prove the allegation that an obligation has not been fulfilled. It is the Commission’s responsibility to place before the Court all the factual information needed to enable the Court to establish that the obligation has not been fulfilled and, in so doing, the Commission may not rely on any presumption (see, to that effect, inter alia, Case 290/87 Commission  v Netherlands  [1989] ECR 3083, paragraphs 11 and 12, and Case C‑241/08 Commission  v France  [2010] ECR I‑0000, paragraph 22).
63. However, it is settled law that Article 43 EC precludes any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to hinder or to render less attractive the exercise by EU citizens of the freedom of establishment that is guaranteed by the Treaty (see, inter alia, Case C‑299/02 Commission  v Netherlands  [2004] ECR I‑9761, paragraph 15, and Case C‑140/03 Commission  v Greece  [2005] ECR I‑3177, paragraph 27).
64. In that context, it should be borne in mind that the concept of ‘restriction’ for the purposes of Article 43 EC covers measures taken by a Member State which, although applicable without distinction, affect access to the market for undertakings from other Member States and thereby hinder intra-Community trade (see, to that effect, Case C‑442/02 CaixaBank France  [2004] ECR I‑8961, paragraph 11; Case C‑518/06 Commission  v Italy  [2009] ECR I‑3491, paragraph 64; and, by analogy, Case C‑110/05 Commission  v Italy  [2009] ECR I‑519, paragraph 37).
65. National legislation which makes the establishment of an undertaking 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 undertaking of freedom of establishment, by preventing it from freely pursuing its activities through a fixed place of business (see Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez  [2010] ECR I‑0000, paragraph 54).
73. It is settled law that restrictions on 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 (Case C‑169/07 Hartlauer  [2009] ECR I‑1721, paragraph 44; Joined Cases C‑171/07 and C‑172/07 Apothekerkammer des Saarlandes and Others  [2009] ECR I‑4171, paragraph 25; and Blanco Pérez and Chao Gómez , paragraph 61).
74. Such overriding reasons recognised by the Court include: environmental protection (see, inter alia, Case C‑384/08 Attanasio Group  [2010] ECR I‑0000, paragraph 50 and the case-law cited); town and country planning (see, by analogy, Case C‑567/07 Woningstichting Sint Servatius  [2009] ECR I‑9021, paragraph 29 and the case-law cited); and consumer protection (see, inter alia, Case C‑260/04 Commission  v Italy  [2007] ECR I‑7083, paragraph 27 and the case-law cited). On the other hand, purely economic objectives cannot constitute an overriding reason in the public interest (see, to that effect, inter alia, Case C‑96/08 CIBA  [2010] ECR I‑0000, paragraph 48 and the case-law cited).
75. In that regard, it should be recalled that, although it is for the Member State relying on an overriding reason in the public interest as justification for a restriction on freedom of movement to demonstrate that its legislation is appropriate and necessary to attain the legitimate objective pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions (see, to that effect, Case C-110/05 Commission  v Italy , paragraph 66).
80. In that regard, it should be noted that – contrary to the assertions made by the Commission – restrictions relating to the location and size of large retail establishments appear to be methods suitable for achieving the objectives relating to town and country planning and environmental protection, relied on by the Kingdom of Spain.
83. In such circumstances, the reasons which may be invoked by a Member State in order to justify a derogation from the principle of freedom of establishment must be accompanied by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that Member State, and by precise evidence enabling its arguments to be substantiated (see Case C‑161/07 Commission  v Austria  [2008] ECR I‑10671, paragraph 36 and the case-law cited).
123. However, as was pointed out in paragraph 75 above, although it is for the Member State relying on an overriding reason in the public interest as justification for a restriction on freedom of movement to demonstrate that its legislation is appropriate and necessary to attain the legitimate objective pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions.
124. In that regard, Member States cannot be denied the possibility of pursuing objectives such as environmental protection, town and country planning and consumer protection through the introduction of rules which are easily managed and supervised by the competent authorities (see, by analogy, Case C‑137/09 Josemans  [2010] ECR I‑0000, paragraph 82).