Attanasio Group Srl v Comune di Carbognano.
Date: 2010-03-11
16. In view of the wording of the question referred, it should be recalled at the outset that under Article 267 TFEU the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with Community law (see, in particular, Case C‑107/98 Teckal  [1999] ECR I‑8121, paragraph 33; Joined Cases C‑19/01, C‑50/01 and C‑84/01 Barsotti and Others  [2004] ECR I‑2005, paragraph 30; and Case C‑237/04 Enirisorse  [2006] ECR I‑2843, paragraph 24 and the case-law cited).
17. However, the Court has repeatedly held that it has jurisdiction to give the national court full guidance on the interpretation of European Union law (‘EU law’) in order to enable it to determine the issue of compatibility for the purposes of the case before it (see, inter alia, Case 188/86 Lefèvre [1987] ECR 2963, paragraph 6; Case C‑292/92 Hünermund and Others  [1993] ECR I‑6787, paragraph 8; and Enirisorse , paragraph 24).
18. Accordingly, if questions have been improperly formulated or go beyond the scope of the powers conferred on the Court by Article 267 TFEU, the Court is free to extract from all the factors provided by the national court and, in particular, from the statement of grounds in the order for reference, the elements of EU law requiring an interpretation having regard to the subject-matter of the dispute (see, to that effect, inter alia, Case 83/78 Pigs Marketing Board  v Redmond [1978] ECR 2347, paragraph 26; Case C‑105/96 Codiesel  [1997] ECR I‑3465, paragraph 13; and Case C‑536/03 Antόnio Jorge  [2005] ECR I‑4463, paragraph 16).
19. It is therefore for the Court, in the present case, to restrict its analysis to the provisions of EU law and provide an interpretation of them which will be of use to the national court, which has the task of determining the compatibility of the provisions of national law with that law (see, by way of analogy, inter alia, Case C‑380/05 Centro Europa 7 [2008] ECR I‑349, paragraph 51). To that end, it is for the Court to reformulate the question referred to it (see, by way of analogy, inter alia, Case C‑210/04 FCE Bank  [2006] ECR I‑2803, paragraph 21).
22. According the documents submitted to the Court, and as the national court itself essentially points out, all the facts in the main proceedings are confined within a single Member State. As a preliminary point, it is therefore necessary to ascertain whether the Court has jurisdiction in the present case to give a ruling on the provisions of the Treaty listed in the national court’s question, namely Articles 43 EC, 48 EC, 49 EC and 56 EC (see, by way of analogy, Centro Europa 7 , paragraph 64).
23. National legislation such as that at issue in the main proceedings which, as worded, applies to Italian nationals and to nationals of other Member States alike is, generally, capable of falling within the scope of the provisions on the fundamental freedoms established by the Treaty only to the extent that it applies to situations connected with intra-Community trade (see Case C‑448/98 Guimont  [2000] ECR I‑10663, paragraph 21; Case C‑6/01 Anomar and Others  [2003] ECR I‑8621, paragraph 39 and the case-law cited; and Centro Europa 7 , paragraph 65).
24. However, in the present case it is far from inconceivable that companies established in Member States other than the Republic of Italy have been or are interested in selling motor fuel in the Republic of Italy.
25. Next, in principle it is for the national courts alone to determine, in the light of the particular features of each case, both the need to refer a question for a preliminary ruling in order to give their judgment and the relevance of that question as referred to the Court ( Guimont , paragraph 22). A reference for a preliminary ruling from a national court may be rejected by the Court only if it is quite obvious that the interpretation of EU law sought by that court is unrelated to the actual nature of the case or the subject-matter of the main proceedings (Case C‑281/98 Angonese  [2000] ECR I‑4139, paragraph 18, and Anomar and Others , paragraph 40).
28. For this reason, on 17 September 2009, in accordance with Article 104(5) of the Rules of Procedure, the Court asked the national court whether, in view in particular of the arguments set out in the order for reference concerning Attanasio’s possible lack of legal interest in bringing the main proceedings, the changes made to the relevant Italian legislation by Article 83a(17) and (18) of Law No 133/2008, read in conjunction with the last subparagraph of Article 1(2) of Law No 131/2003 of 5 June 2003, had an effect on the interest in obtaining a preliminary ruling in the present case. It must be borne in mind in that regard that the Court’s function in preliminary rulings is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothet ical questions (see, to that effect, inter alia, Case 149/82 Robards [1983] ECR 171, paragraph 19; Case C‑412/93 Leclerc-Siplec v TF1 Publicité and M6 Publicité  [1995] ECR I‑179, paragraph 12; and Case C‑189/08 Zuid-Chemie  [2009] ECR I‑0000, paragraph 36).
31. It follows that the question submitted is admissible in so far as it refers to Articles 43 EC, 48 EC, 49 EC and 56 EC, which, by laying down specific non-discrimination rules in the areas of freedom of establishment, freedom to provide services and free movement of capital, are the specific expression in those areas of the general prohibition of discrimination on grounds of nationality laid down in Article 12 EC.
32. On the other hand, in so far as the question referred by the national court, as reformulated in paragraph 21 of this judgment, seeks an interpretation of Articles 81 EC to 89 EC, it should be recalled that the need to provide an interpretation of EU law which will be of use to the national court requires that the national court define the factual and legal context of its questions or, at the very least, that it explain the factual circumstances on which those questions are based (see Centro Europa 7 , paragraph 57 and the case-law cited). Those requirements are of particular importance in the area of competition, where the factual and legal situations are often complex (see to that effect, inter alia, Joined Cases C‑320/90 to C‑322/90 Telemarsicabruzzo and Others  [1993] ECR I‑393, paragraph 7; Case C‑238/05 Asnef-Equifax and Administración del Estado  [2006] ECR I‑11125, paragraph 23; and Case C‑250/06 United Pan-Europe Communications Belgium and Others  [2007] ECR I‑11135, paragraph 20).
36. The operation of roadside service stations falls within the concept of ‘establishment’ within the meaning of the Treaty. That is a very broad concept which allows EU nationals to participate, on a stable and continuous basis, in the economic life of a Member State other than their State of origin and to profit therefrom (see to that effect, in particular Case 2/74 Reyners [1974] ECR 631, paragraph 21; Case C‑55/94 Gebhard  [1995] ECR I‑4165, paragraph 25; and Case C 451/05 ELISA  [2007] ECR I‑8251, paragraph 63).
37. It should be noted that Article 12 EC is intended to apply independently only to situations governed by EU law for which the Treaty lays down no specific prohibition of discrimination. In the field of freedom of establishment, the principle of the prohibition of discrimination is given specific expression in Article 43 EC (see, in particular, to that effect, Case C‑193/94 Skanavi and Chryssanthakopoulos  [1996] ECR I‑929, paragraphs 20 and 21; Case C‑251/98 Baars  [2000] ECR I‑2787, paragraphs 23 and 24; and Case C‑105/07 Lammers & Van Cleeff  [2008] ECR I‑173, paragraph 14).
39. Furthermore, in accordance with the first paragraph of Article 50 EC, the provisions of the Treaty concerning freedom to supply services apply only if those relating to the right of establishment do not apply. Therefore Article 49 EC is also not relevant in the present proceedings. The construction of roadside service stations by the legal persons referred to in Article 48 EC necessarily implies that they have access to the territory of the host Member State with a view to a stable and continuous participation in the economic life of that State, in particular by the setting up of agencies, branches or subsidiaries (see, by way of analogy, Gebhard , paragraphs 22 to 26, and Case C‑171/02 Commission  v Portugal [2004] ECR I‑5645, paragraphs 24 and 25).
40. Furthermore, even if the legislation at issue in the main proceedings were to have restrictive effects on free movement of capital, it follows from the case-law that those effects would be the unavoidable consequence of an obstacle to freedom of establishment and would not therefore justify an independent examination of that legislation from the point of view of Article 56 EC (see, by way of analogy, Case C‑196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I‑7995, paragraph 33; Case C‑231/05 Oy AA  [2007] ECR I‑6373, paragraph 24; and Case C‑284/06 Burda  [2008] ECR I‑4571, paragraph 74).
42. Freedom of establishment, which Article 43 EC grants to Union nationals and which includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, under the same conditions laid down for its own nationals by the law of the Member State where such establishment is effected, entails, in accordance with Article 48 EC, for companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in the Member State concerned through a subsidiary, branch or agency (see, inter alia, Case C‑307/97 Saint-Gobain ZN  [1999] ECR I‑6161, paragraph 35; Cadbury Schweppes and Cadbury Schweppes Overseas , paragraph 41; and Case C‑524/04 Test Claimants in the Thin Cap Group Litigation  [2007] ECR I‑2107, paragraph 36).
43. According to settled case-law, Article 43 EC precludes any national measure which, even if applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Union nationals of the freedom of establishment that is guaranteed by the Treaty (see, to that effect, inter alia, Case C‑19/92 Kraus  [1993] ECR I‑1663, paragraph 32; Gebhard , paragraph 37; Case C‑442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11; and Case C‑169/07 Hartlauer  [2009] ECR I‑0000, paragraph 33 and the case-law cited).
44. The Court has held in particular that such restrictive effects may arise where, on account of national legislation, a company may be deterred from setting up subsidiary bodies, such as permanent establishments, in other Member States and from carrying on its activities through such bodies (see, to that effect, inter alia, Case C‑446/03 Marks & Spencer  [2005] ECR I‑10837, paragraphs 32 and 33; Case C‑471/04 Keller Holding  [2006] ECR I‑2107, paragraph 35; and Case C‑293/06 Deutsche Shell  [2008] ECR I‑1129, paragraph 29).
45. Accordingly, a rule such as that at issue in the main proceedings, which makes the opening of new roadside service stations subject to the compliance with minimum distances between service stations, constitutes a restriction within the meaning of Article 43 EC. Such a rule, which applies only to new service stations and not to service stations already in existence before the entry into force of the rule, makes access to the activity of fuel distribution subject to conditions and, by being more advantageous to operators who are already present on the Italian market, is liable to deter, or even prevent, access to the Italian market by operators from other Member States (also see, by way of analogy, CaixaBank France , paragraphs 11 to 14, and Case C‑518/06 Commission  v Italy  [2009] ECR I‑0000, paragraphs 62 to 64, 70 and 71).
49. Article 46(1) EC allows inter alia restrictions on the freedom of establishment that are justified on grounds of public health (see, to that effect, Hartlauer , paragraph 46).
50. In addition, the Court’s case-law has identified a number of overriding reasons in the public interest capable of justifying restrictions on the fundamental freedoms guaranteed by the Treaty. Reasons already recognised by the Court include the objectives of road safety (see, inter alia, Case C‑55/93 van Schaik  [1994] ECR I‑4837, paragraph 19, and Case C‑54/05 Commission  v Finland  [2007] ECR I‑2473, paragraph 40 and the case-law cited), environmental protection (see, inter alia, Case 302/86 Commission  v Denmark  [1988] ECR 4607, paragraph 9, and Case C‑309/02 Radlberger Getränkegesellschaft and S. Spitz  [2004] ECR I‑11763, paragraph 75) and consumer protection (see, inter alia, Case 220/83 Commission  v France  [1986] ECR 3663, paragraph 20; CaixaBank France , paragraph 21, and Case C‑393/05 Commission  v Austria  [2007] ECR I‑10195, paragraph 52 and the case-law cited).
51. However, it should be borne in mind that, according to settled case-law, irrespective of the existence of a legitimate objective under EU law, a restriction on the fundamental freedoms enshrined in the Treaty may be justified only if the relevant measure is appropriate to ensuring the attainment of the objective in question and does not go beyond what is necessary to attain that objective (see, to that effect, Case C‑100/01 Oteiza Olazabal  [2002] ECR I‑10981, paragraph 43; Case C‑527/06 Renneberg  [2008] ECR I‑7735, paragraph 81; Joined Cases C‑155/08 and C‑157/08 X and Passenheim-van Schoot  [2009] ECR I‑0000, paragraph 47; and Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑0000, paragraph 42). Furthermore, national legislation is appropriate to ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (see, in particular, Hartlauer , paragraph 55, and Presidente del Consiglio dei Ministri , paragraph 42).
53. As the national court itself points out, that rule only applies in the case of the construction of new service stations. Hence, it does not apply to pre-existing service stations, which would require, for example, that the pre-existing service stations be progressively relocated in order to comply with the prescribed minimum distances. As the national court observes, this casts doubt on the consistency of the rule at issue in the main proceedings in relation to the abovementioned objectives.
54. In addition, even accepting that minimum distances between roadside service stations rules are an appropriate means of attaining the objectives of road safety and protection of health and the environment, it is apparent from the national court’s own findings that those objectives are apt to be more appropriately attained by taking into account the specific situation of each proposed service station, in the course of the controls that the municipalities must carry out, in any event, in the case of applications for permission to open a new service station. As stated in paragraph 4 of this judgment, such controls involve, inter alia, the conformity of the service station with the provisions of the land use plan and legislation relating to health, the environment and road safety. In those circumstances, as the national court itself notes, the introduction of minimum distances appears to go beyond what is necessary to attain the objectives pursued.
55. Secondly, with regard to the objective mentioned in the order for reference of the ‘rationalisation of the service provided to users’, it must be recalled that reasons 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‑109/04 Kranemann  [2005] ECR I‑2421, paragraph 34 and the case-law cited).
56. Moreover, even assuming that that objective could, to the extent that it falls within the scope of consumer protection, be regarded as an overriding reason in the public interest and not a reason of a purely economic nature, it is difficult to see how legislation such as that at issue in the main proceedings can be appropriate to protect consumers or be beneficial to them. On the contrary, as the national court observed in essence, by hindering the market access of new operators, such legislation appears instead to favour the position of operators already present on Italian territory, without consumers obtaining any real benefits. In any event, it appears that the legislation goes beyond what is necessary to attain any objective of consumer protection, this being a matter which, if need be, is for the national court to verify.