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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Sbarigia (Competition) [2010] EUECJ C-393/08 (01 July 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2010/C39308.html Cite as: [2010] EUECJ C-393/08, [2010] EUECJ C-393/8

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(National legislation governing opening times and closing days of pharmacies – Exemption – Power of decision of the competent authorities)

In Case C-393/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale per il Lazio (Italy), made by decision of 21 May 2008, received at the Court on 10 September 2008, in the proceedings

Emanuela Sbarigia

v

Azienda USL RM/A,

Comune di Roma,

Assiprofar – Associazione Sindacale Proprietari Farmacia,

Ordine dei Farmacisti della Provincia di Roma,

composed of A. Tizzano, President of the Chamber, E. Levits (Rapporteur), A. Borg Barthet, J.-J. Kasel and M. Berger, Judges,

Advocate General: N. Jääskinen,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 17 December 2009,

after considering the observations submitted on behalf of:

–        Ms Sbarigia, by V. Cerulli Irelli and M. Di Giandomenico, avvocati,

–        the Comune di Roma, by R. Murra, avvocato,

–        Assiprofar – Associazione Sindacale Proprietari Farmacia, by M. Luciani and I. Perego, avvocati,

–        the Ordine dei Farmacisti della Provincia di Roma, by S. Cicciotti, avvocato,

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

–        the Greek Government, by S. Spyropoulos, Z. Chatzipavlou and V. Karra, acting as Agents,

–        the Netherlands Government, by C. M. Wissels and D. J. M. de Grave, acting as Agents,

–        the Austrian Government, by C. Pesendorfer and T. Kröll, acting as Agents,

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

after hearing the Opinion of the Advocate General at the sitting on 11 March 2010,

gives the following

Judgment

1        This reference for a preliminary ruling relates to the interpretation of Articles 49 EC, 81 EC to 86 EC, 152 EC and 153 EC.

2        The reference has been made in the context of proceedings between Ms Sbarigia, owner of a pharmacy, and the Azienda Unità Sanitaria Locale ‘Roma A’ (the local health office for Rome A, ‘the ASL RM/A’), the competent authority of the municipality of Rome, concerning the decision of the ASL RM/A rejecting the applications made by Ms Sbarigia for exemption from closing times and periods, in particular the annual closure period for summer 2006.

 Legal context

3        The legislation applicable in the main proceedings is Lazio Regional Law No 26 of 30 July 2002, which lays down rules on opening times, duty rotas and holidays for pharmacies open to the public (Legge Regionale Lazio n. 26 del 30 juglio 2002, Disciplina dell’orario, dei turni e delle ferie delle farmacie aperte al pubblico, Bollettino Ufficiale della Regione Lazio No 23, ordinary supplement No 5 of 20 August 2002, and GURI No 24, special series No 3 of 14 June 2003 (‘the L.R. 26/02’)).

4        Articles 2 to 8 of the L.R. 26/02 determine the opening times, voluntary duty-pharmacy service, weekly closing and annual holidays of pharmacies. They impose in particular maximum opening hours, the obligation to close on Sundays, a half-day per week and on public holidays, and a minimum period of annual holidays.

5        Article 10 of the L.R. 26/02 is worded as follows:

‘1.      For the municipality of Rome, each [local health office (‘USL’)] shall adopt the measures provided for in this Law falling within its competence, with the agreement of the other USLs concerned.

2.      For outlets situated in specific municipal areas, the weekly public opening times, holidays for urban pharmacies and the weekly half-day rest period … may be modified by decision of the USL responsible for the area in question, in agreement with the mayor of the municipality concerned, the provincial order of pharmacists and the provincial professional organisations most representative of public and private pharmacies.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

6        Ms Sbarigia is the owner of a pharmacy located in an area in the historic centre of Rome called ‘Tridente’. This neighbourhood, entirely pedestrianised, is situated in the heart of the city’s tourist area.

7        Because of this location and the significant increase in the number of customers during July and August, on 31 May 2006 the applicant in the main proceedings made an application on the basis of Article 10(2) of the L.R. 26/02 to the ASL RM/A, which is responsible for that area, for exemption from the holiday closure period for summer 2006. That application was rejected by decision of 22 June 2006, and Ms Sbarigia brought an action against that decision before the referring court.

8        Pending the outcome of those proceedings, by a second application, of 18 October 2006, Ms Sbarigia sought more broadly an exemption from closure for annual holidays and on public holidays and an extension of the weekly opening hours throughout the year. In that regard, Ms Sbarigia claimed that a similar authorisation had been granted on 8 September 2006 to another pharmacy, located near the ‘Termini’ railway station, with the same specific type of clientele as her own pharmacy.

9        That second application was also rejected by the ASL RM/A by Decision No 119945/P of 22 March 2007, against which Ms Sbarigia lodged additional submissions by way of appeal and requested suspensory measures.

10      By order of 22 June 2007, the referring court granted the application for suspension of operation of the decision of 22 March 2007, so as to permit the ASL RM/A to re-examine it.

11      The ASL RM/A subsequently adopted Decision No 40249 of 1 August 2007, by which it once again rejected the application of the applicant in the main proceedings, pursuant to Article 10(2) of the L.R. 26/02, on the basis of the unfavourable opinion of the Comune di Roma, the Ordine dei Farmacisti della Provincia di Roma (Order of Pharmacists of the Province of Rome) and the professional associations Assiprofar – Associazione Sindicale Proprietari Farmacia (‘Assiprofar’) and Confservizi.

12      Ms Sbarigia brought an action against that decision, invoking further submissions by way of appeal in the context of the proceedings pending before the referring court.

13      According to the Tribunale amministrativo regionale per il Lazio (Lazio Regional Administrative Court), the classification of pharmacy services as a public service intended to protect the health of consumers does not suffice to justify the restrictive provisions relating to the opening times of pharmacies. A liberalisation of the timetables and opening times for all outlets – which was moreover advocated in a report issued on 1 February 2007 by the Autorità garante della concorrenza e del mercato (national authority responsible for upholding competition and the market) – would make it possible to broaden supply as a whole (with the rules on location guaranteeing a balanced geographical spread of pharmacies) for the benefit of customers.

14      The provisions of the L.R. 26/02 would also seem to be excessive and unjustified. The public interest and the needs relating to pharmacy services would no doubt be better protected by measures liberalising the opening times of pharmacies, promoting the development of competition.

15      Thus, the referring court is uncertain as to the compatibility of the restrictions at issue in the main proceedings with the principles of Community law regarding the freedom of competition of undertakings, and with the action of the European Union seeking to improve and protect health. In particular, it asserts that, contrary to that aim, the legislation concerning the organisation of pharmacy services currently in force in the Lazio Region prevents an effective contribution to the protection of public health.

16      In those circumstances, the Tribunale amministrativo regionale per il Lazio decided to stay the proceedings and to refer the following two questions to the Court for a preliminary ruling:

‘(1)      Is it compatible with the Community principles upholding freedom of competition and freedom to provide services, laid down inter alia in Articles 49 [EC and] 81 [EC to] 86 [EC], to impose on pharmacies the abovementioned prohibitions – whereby they are not allowed either to decline to take an annual holiday or to remain open whenever they so desire, beyond the maximum limits at present allowed under the abovementioned provisions of [the L.R. 26/02] – and the concomitant additional requirement, under Article 10(2) of [the L.R. 26/02], of a prior discretionary assessment by the Administration (carried out in agreement with the bodies and organisations specified in that article) as to the special nature of the municipal area in which the applicant pharmacies are located, as a precondition for obtaining a derogation from those prohibitions within the Municipality of Rome?

(2)      Is it compatible with Articles 152 [EC] and 153 [EC] to impose on the public pharmacy service, albeit with the aim of protecting the health of consumers, conditions – such as those laid down in [the L.R. 26/02] – limiting or precluding the possibility of extending the daily, weekly or annual opening times of individual pharmacies?

 The admissibility of the reference for a preliminary ruling

17      In their written observations, the Italian and Greek Governments dispute the admissibility of the present reference for a preliminary ruling. At the hearing, Assiprofar and, implicitly, the Ordine dei Farmacisti della Provincia di Roma expressed the same opinion.

18      In particular, the Italian Government argues that the referring court does not provide any information about the factual and legal situation which led it to question whether the relevant national provision is compatible with the provisions of the EC Treaty that it refers to. The Greek Government, Assiprofar and the Ordine dei Farmacisti della Provincia di Roma maintain, for their part, that, in the absence of any cross-border element, the questions referred for a preliminary ruling have no connection with European Union law.

19      In that regard, it must be recalled that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling (see Case C-169/07 Hartlauer [2009] ECR I-1721, paragraph 24 and case-law cited).

20      It follows that questions relating to European Union law enjoy a presumption of relevance. The Court may thus refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-11421, paragraph 25; and Joined Cases C-222/05 to C-225/05 van der Weerd and Others [2007] ECR I-4233, paragraph 22).

21      As regards the objection of inadmissibility raised by the Italian Government, it must be stated that the order for reference contains an adequate description of the legal and factual background to the dispute in the main proceedings, and the information provided by the referring court allows the significance of the questions referred to be determined. Thus, the order for reference has given the interested persons a genuine opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice, as is indeed shown by the content of the observations submitted to the Court.

22      It follows that that objection cannot be upheld.

23      As regards next the arguments raised by Assiprofar, the Ordine dei Farmacisti della Provincia di Roma and the Greek Government, according to which all aspects of the main proceedings are confined within one Member State, it is apparent from the case-law of the Court that its answer may be useful to the referring court even in such circumstances, in particular if its national law were to require it to allow a national to enjoy the same rights as those which a national of another Member State would derive from European Union law in the same situation (see, inter alia, Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, paragraph 29; Cipolla and Others, paragraph 30; and Joined Cases C-570/07 and C-571/07 Blanco Pérez and Chao Gómez [2010] ECR I-0000, paragraph 36).

24      In the present case, the situation evoked in the case-law cited in paragraph 23 of this judgment applies, in the context of the main proceedings, to the rights that a national of another Member State could derive from European Union law if he were in the same situation as Ms Sbarigia, running a pharmacy in a specific municipal area of the municipality of Rome and faced with a decision of the competent national authorities applying Article 10(2) of the L.R. 26/02 to an application which in no way calls in question the general system of rules on opening times and holidays for pharmacies laid down by that law, but seeks merely to obtain, as an exception to that general system, exemption from any period of closure.

25      Therefore, in the light of the specific circumstances of the main proceedings, it is quite obvious that the interpretation of Article 49 EC, requested by the referring court in its order, is not relevant for the outcome of the main proceedings.

26      As the Advocate General stated in points 72 and 73 of his Opinion, it is apparent from settled case-law that a national of a Member State, who pursues a professional activity on a stable and continuous basis in another Member State, comes under the chapter of the EC Treaty relating to the right of establishment and not that relating to services (see, inter alia, Case 2/74 Reyners [1974] ECR 631, paragraph 21; and Case C-55/94 Gebhard [1995] ECR I-4165, paragraph 28).

27      Moreover, as regards specifically the freedom of establishment, although the Tribunale amministrativo regionale per il Lazio has not expressly requested the Court to interpret Article 43 EC, it is quite obvious that the interpretation of that article is also not relevant in the context of the proceedings pending before the referring court.

28      In the present case, as has already been stated in paragraph 23 of this judgment, the pharmacy concerned is a fixed establishment in the pedestrianised zone in the centre of Rome, the owner of which, by definition a national of another Member State, would already be pursuing a professional activity on a continuous basis. Accordingly, the exercise of the right of establishment laid down in Article 43 EC is clearly not at issue in the main proceedings.

29      That said, it is apparent that the other provisions of Community law relating to competition of which the referring court seeks an interpretation, in particular Articles 81 EC to 86 EC, are also manifestly inapplicable in a context such as that of the main proceedings.

30      It should be noted, first, that Articles 83 EC to 85 EC are not in any way relevant in the context of the proceedings before the referring court, because they are either purely procedural provisions (Articles 83 EC and 85 EC) or transitional provisions (Article 84 EC).

31      As regards, secondly, Articles 81 EC and 82 EC, although it is true that they are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those articles, read in conjunction with Article 10 EC, which lays down a duty to cooperate, none the less require Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see Cipolla and Others, paragraph 46 and case'law cited).

32      In that regard, however, it is quite obvious that the national legislation at issue in the main proceedings, relating to the possible grant of an exemption in relation to the opening periods of a pharmacy located in a specific municipal area of the municipality of Rome, cannot, in itself or by its application, affect trade between Member States within the meaning of Articles 81 EC and 82 EC (see, a contrario, Case 8/72 Vereniging van Cementhandelaren v Commission [1972] 977, paragraph 29; Case C-179/90 Merci convenzionali porto di Genova [1991] ECR I-5889, paragraphs 14 and 15; and Case C-35/99 Arduino [2002] ECR I-1529, paragraph 33).

33      Consequently, it must be held that, in so far as it relates to Articles 81 EC and 82 EC, the first question referred by the national court is inadmissible.

34      Thirdly, it follows from the fact that those provisions of European Union law concerning competition are not applicable in the main proceedings that Article 86 EC likewise does not apply in them.

35      As regards Article 28 EC, referred to by certain interested persons which submitted observations before the Court, it must be held, for the sake of completeness, that, for the reasons referred to in paragraph 32 of this judgment, an effect on trade between Member States and, therefore, the possibility of a barrier to the free movement of goods must also be ruled out from the outset.

36      It follows that the interpretation of Article 28 EC is not relevant for the purposes of the outcome of the proceedings before the referring court.

37      As regards, finally, Articles 152 EC and 153 EC, referred to by the national court in its second question, it suffices to note that, as was stated by the Advocate General in points 48 to 51 of his Opinion, and as was pointed out by almost all the interested persons which submitted observations in the present proceedings, those articles are addressed to the institutions of the European Union and to the Member States, and clearly cannot be relied upon in order to seek an examination of whether national measures are consistent with European Union law.

38      It follows from all of the foregoing that the present request for a preliminary ruling must be regarded as inadmissible.

 Costs

39      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

The reference for a preliminary ruling from the Tribunale amministrativo regionale per il Lazio, made by decision of 21 May 2008, is inadmissible.

[Signatures]

* Language of the case: Italian.