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Case Law of the European Court of Justice
30 Dec 2013
The court of Italy has issued a request for a preliminary ruling to the Court of Justice in a case where the compliance of a regional law with the EU law was assessed. The referring court asked, whether the European Union law precludes regional legislation, which limits the grant of authorisation for the establishment of a new optician’s shop in stating that:
1) In each geographical area, only one optician’s shop may be established, in principle, for every 8 000 residents, and;
2) Each new optician’s shop must, in principle, be a minimum distance of 300 metres from an existing optician’s shop.
On the existence of a restriction on freedom of establishment
In its decision, the Court has once again noted that any national measure which, albeit applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by European Union nationals of the freedom of establishment guaranteed by the Treaty, constitutes a restriction within the meaning of Article 49.
Due to the fact that the regional law makes the establishment of new opticians’ shops subject to prior administrative authorisation and that this legislation allows to set up a limited number of optical stores in a given area, as well as due to the fact that there are barriers to opticians to freely choose their self-employment activity location, this Italian region act restricts the freedom of establishment within the meaning of Article 49 of the Treaty.
Justification for the restriction on the freedom of establishment
However, the Court has also noted that according to the existing case-law, the freedom of establishment restrictions may be justified by imperative requirements in the general interest, provided that they can ensure the objectives they pursued and not go beyond what is necessary to achieve such objectives.
The rule, according to which only one optical shop can be established for every certain number of citizens facilitates even distribution of the shops in the area and, also, ensures that all residents have adequate access to the services offered by opticians, whereas the rule on the minimum distance between two optical stores ensures that a health care provider will be close to all patients, and thus the rule contributes to improved public healthcare in the area.
Accordingly, the Court found that such legislation is, in principle, appropriate for securing attainment of the general objective pursued of protecting public health and, in particular, the objectives of ensuring even distribution of opticians’ shops throughout the national territory and ensuring rapid access to such establishments. Nonetheless, the Court also noted that the national court must examine whether the competent authorities use appropriately, in accordance with transparent and objective criteria, the powers made available under the legislation, with a view to attaining, in a coherent and systematic manner, the objectives pursued.
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