Attanasio Group Srl v Comune di Carbognano.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ó Caoimh
• ECLI: ECLI:EU:C:2010:133
• Date: 11 March 2010
• Docket Number: C-384/08
• Procedure Type: Reference for a preliminary ruling

Case C-384/08

Attanasio Group Srl

v

Comune di Carbognano

(Reference for a preliminary ruling from the Tribunale amministrativo regionale del Lazio)

(Articles 43 EC and 48 EC – Regional legislation laying down mandatory minimum distances between roadside service stations – Jurisdiction of the Court and admissibility of the reference for a preliminary ruling – Freedom of establishment – Restriction)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Question raised concerning a dispute confined within a single Member State

(Art. 267 TFEU)

2. Freedom of movement for persons – Freedom of establishment – Provisions of the Treaty – Scope

(Arts 43 EC, 48 EC, 49 EC and 56 EC)

3. Freedom of movement for persons – Freedom of establishment – Restrictions

(Arts 43 EC and 48 EC)

1. In the context of a reference for a preliminary ruling, when all the facts in the main proceedings are confined within a single Member State, the Court may have jurisdiction to answer the national court when, with regard to regulations laying down mandatory minimum distances between roadside service stations, it is far from inconceivable that companies established in Member States other than the Member State concerned have been or are interested in selling motor fuel in that Member State.

(see paras 22-24)

2. National legislation which provides for mandatory minimum distances between roadside service stations must be examined in the light of the provisions of the Treaty on freedom of establishment. Since the construction of such 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, the provisions concerning the freedom to provide services, which may only be applied where the provisions concerning the freedom of establishment do not apply, are not relevant. Furthermore, even if that legislation were to have restrictive effects on free movement of capital, 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 paras 39-41)

3. Article 43 EC, read in conjunction with Article 48 EC, is to be interpreted as meaning that domestic provisions, which lay down mandatory minimum distances between roadside service stations, applying only in the case of the construction of new service stations, constitute a restriction on the freedom of establishment enshrined in the EC Treaty. That restriction does not appear to be such as to be justified by the objectives of road safety, protection of health and the environment, or the rationalisation of the service provided to users, these being matters for the national court to verify.

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. By being more advantageous to operators already present on the national market, such a rule is liable to deter, or even prevent, access to the national market by operators from other Member States and constitutes a restriction of the freedom of establishment within the meaning of Article 43 EC.

That restriction does not appear justified by the objectives of road safety, protection of health and the environment, when it does not appear to be a measure aimed at achieving those objectives in a consistent and systematic manner and, therefore, does not appear appropriate to ensuring the attainment of those objective invoked and does not go beyond what is necessary to attain those objectives, subject to verification to be carried out by the national court.

With regard to the rationalisation of the service provided to users, 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. In addition, 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 such legislation can be appropriate to protect consumers or be beneficial to them. On the contrary, by hindering the market access of new operators, such legislation appears instead to favour the position of operators already present on the national 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 is for the national court to verify.

(see paras 45, 51-52, 55-57, operative part)

JUDGMENT OF THE COURT (Third Chamber)

11 March 2010 (*)

(Articles 43 EC and 48 EC – Regional legislation laying down mandatory minimum distances between roadside service stations – Jurisdiction of the Court and admissibility of the reference for a preliminary ruling – Freedom of establishment – Restriction)

In Case C‑384/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale del Lazio (Italy), made by decision of 3 July 2008, received at the Court on 27 August 2008, in the proceedings

Attanasio Group Srl

v

Comune di Carbognano,

intervening party:

Felgas Petroli Srl,

THE COURT (Third Chamber),

composed of J.N. Cunha Rodrigues, President of the Second Chamber, acting as President of the Third Chamber, P. Lindh, A. Rosas, A. Ó Caoimh (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: J. Mazák,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Italian Government, by G. Palmieri, acting as Agent, and by M. Russo, avvocato dello Stato,

– the Czech Government, by M. Smolek, acting as Agent,

– the Commission of the European Communities, by E. Traversa and C. Cattabriga, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Articles 43 EC, 48 EC, 49 EC and 56 EC and also ‘the principles of freedom of competition and non-discrimination enshrined in the [EC] Treaty’.

2 The reference has been made in the course of proceedings between Attanasio Group Srl (‘Attanasio’) and the Comune di Carbognano (Municipality of Carbognano) regarding the grant of a construction permit for a service station to a third party, Felgas Petroli Srl (‘Felgas Petroli’).

National legal context

3 The fuel distribution system in Italy was reformed by Legislative Decree No 32 of 11 February 1998 on rationalising the fuel distribution system, in accordance with Article 4(4)(c) of Law No 59 of 15 March 1997 (GURI No 53 of 5 March 1998, p. 4), as subsequently amended and supplemented on several occasions (‘Legislative Decree No 32/1998’).

4 In accordance with Article 2 of the Legislative Decree, the construction and operation of service stations is subject to administrative authorisation. Authorisation is granted by the municipality in the territory in which those activities are carried out, subject to verification of the conformity of the stations with the provisions of the land use plan, tax legislation, legislation relating to health, environment and road safety, provisions for the protection of historic and artistic assets and the guidance plans of the Italian regions.

5 Article 19 of Law No 57 of 5 March 2001 on the opening-up and the regulation of markets (GURI No 66 of 20 March 2001, p. 4, ‘Law No 57/2001’) prescribes the adoption of a national plan to ensure the quality and efficiency of service, the freezing of prices and the rationalisation of the fuel distribution system, and containing guidelines on the modernisation of the fuel distribution system (‘the national plan’). In accordance with that plan, adopted by Ministerial Decree of 31 October 2001 approving the national plan containing guidelines on the modernisation of the fuel distribution system (GURI No 279 of 30 November 2001, p. 37, ‘the Ministerial Decree of 31 October 2001’), the regions, in the exercise of the planning powers conferred on them, draw up regional plans in which they determine in particular the criteria for the opening of new sales outlets. According to the written observations submitted by the Commission of the European Communities, at the time of the events that gave rise to the dispute in the main proceedings, minimum compulsory distances between service stations were amongst those criteria.

6 In that context, the Regione Lazio (Lazio Region) adopted Regional Law No 8/2001 (Bollettino Ufficiale della Regione Lazio of 10 April 2001). Pursuant to Article 13 of that law, the municipalities, in exercising the power granted to them to define criteria, requirements and specifications with regard to the zones where service stations may be...