FA.RO. di YK & C. Sas v Agenzia delle Dogane e dei Monopoli.

• Jurisdiction: European Union
• Celex Number: 62023CJ0016
• ECLI: ECLI:EU:C:2024:886
• Docket Number: C-16/23
• Date: 17 October 2024
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (First Chamber)

17 October 2024 (*)

( Reference for a preliminary ruling – Services in the internal market – Directive 2006/123/EC – Authorisation scheme – Article 10 – Conditions for the granting of authorisation – Sale of tobacco products – National legislation making the grant of authorisation to establish a point of sale for tobacco products subject to compliance with conditions – Conditions relating to distance and population – Protection of public health against smoking )

In Case C‑16/23,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per la Liguria (Regional Administrative Court, Liguria, Italy), made by decision of 22 December 2022, received at the Court on 16 January 2023, in the proceedings

FA.RO. di YK & C. Sas

v

Agenzia delle Dogane e dei Monopoli,

intervener:

JS,

THE COURT (First Chamber),

composed of T. von Danwitz, Vice-President of the Court, acting as President of the First Chamber, A. Arabadjiev and I. Ziemele (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: C. Di Bella, Administrator,

having regard to the written procedure and further to the hearing on 24 January 2024,

after considering the observations submitted on behalf of:

– FA.RO. di YK & C. Sas, by G. Briozzo, avvocato,

– JS, by A. Celotto and L. Grazzini, avvocati,

– the Italian Government, by G. Palmieri, acting as Agent, and by D. Del Gaizo and F. Meloncelli, avvocati dello Stato,

– the Spanish Government, by M. Morales Puerta, acting as Agent,

– the European Commission, by L. Armati, L. Malferrari and M. Mataija, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 March 2024,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 49 and 56 and Article 106(2) TFEU and Article 15 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

2 The request has been made in proceedings between FA.RO. di YK & C. Sas (‘FA.RO.’), a company incorporated under Italian law, and the Agenzia delle Dogane e dei Monopoli (Customs and Monopolies Authority, Italy) (‘the ADM’) concerning the refusal of a request for the establishment of a new point of sale for manufactured tobacco products.

Legal context

International law

3 The preamble to the World Health Organisation Framework Convention on Tobacco Control (‘the FCTC’), adopted by the World Health Assembly on 21 May 2003 in Geneva, to which the European Union and its Member States are party, recognises that ‘scientific evidence has unequivocally established that tobacco consumption and exposure to tobacco smoke cause death, disease and disability’ and that ‘cigarettes and some other products containing tobacco are highly engineered so as to create and maintain dependence, and that many of the compounds they contain and the smoke they produce are pharmacologically active, toxic, mutagenic and carcinogenic, and that tobacco dependence is separately classified as a disorder in major international classifications of diseases’.

4 Articles 8 to 13 of the FCTC deal with measures relating to the reduction of demand for tobacco. They concern, respectively: protection from exposure to tobacco smoke; regulation of the contents of tobacco products; regulation of tobacco product disclosures; packaging and labelling of tobacco products; education and public awareness of tobacco control issues; and a comprehensive ban on tobacco advertising, promotion and sponsorship. Article 14 of that convention provides for demand reduction measures concerning tobacco dependence and measures to promote cessation, while Articles 15 to 17 of that convention, which deal with measures relating to the reduction of the supply of tobacco, concern respectively the illicit trade in tobacco products, sales to and by minors, and the provision of support for economically viable alternative activities.

European Union law

5 Recitals 2, 5, 7, 8 and 66 of Directive 2006/123 state:

‘(2) A competitive market in services is essential in order to promote economic growth and create jobs in the European Union. … A free market which compels the Member States to eliminate restrictions on cross-border provision of services while at the same time increasing transparency and information for consumers would give consumers wider choice and better services at lower prices.

…

(5) It is therefore necessary to remove barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services as between Member States and to guarantee recipients and providers the legal certainty necessary for the exercise in practice of those two fundamental freedoms of the Treaty. …

…

(7) This Directive establishes a general legal framework which benefits a wide variety of services while taking into account the distinctive features of each type of activity or profession and its system of regulation. … This Directive also takes into account other general interest objectives, including the protection of the environment, public security and public health as well as the need to comply with labour law.

(8) It is appropriate that the provisions of this Directive concerning the freedom of establishment and the free movement of services should apply only to the extent that the activities in question are open to competition, so that they do not oblige Member States either to liberalise services of general economic interest or to privatise public entities which provide such services or to abolish existing monopolies for other activities or certain distribution services.

…

(66) Access to or the exercise of a service activity in the territory of a Member State should not be subject to an economic test. The prohibition of economic tests as a prerequisite for the grant of authorisation should cover economic tests as such, but not requirements which are objectively justified by overriding reasons relating to the public interest, such as the protection of the urban environment, social policy or public health. The prohibition should not affect the exercise of the powers of the authorities responsible for applying competition law.’

6 Article 1(1) to (3) of that directive states:

‘1. This Directive establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.

2. This Directive does not deal with the liberalisation of services of general economic interest, reserved to public or private entities, nor with the privatisation of public entities providing services.

3. This Directive does not deal with the abolition of monopolies providing services nor with aids granted by Member States which are covered by Community rules on competition.

This Directive does not affect the freedom of Member States to define, in conformity with Community law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to.’

7 Article 2(1) and (2) of that directive is worded as follows:

‘1. This Directive shall apply to services supplied by providers established in a Member State.

2. This Directive shall not apply to the following activities:

(a) non-economic services of general interest;

…’

8 Article 4 of the same directive provides:

‘For the purposes of this Directive, the following definitions shall apply:

…

(6) “authorisation scheme” means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the exercise thereof;

(7) “requirement” means any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States or in consequence of case-law, administrative practice, the rules of professional bodies, or the collective rules of professional associations or other professional organisations, adopted in the exercise of their legal autonomy; rules laid down in collective agreements negotiated by the social partners shall not as such be seen as requirements within the meaning of this Directive;

(8) “overriding reasons relating to the public interest” means reasons recognised as such in the case-law of the Court of Justice, including the following grounds: public policy; public security; public safety; public health; preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artistic heritage; social policy objectives and cultural policy objectives;

…’

9 Article 9(1) of Directive 2006/123 states:

‘Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:

(a) the authorisation scheme does not discriminate against the provider in question;

(b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest;

(c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective.’

10 Under Article 10(1) and (2) of that directive:

‘1. Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.

2. The criteria referred to in paragraph 1 shall...