61987J0020

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1 . PRELIMINARY QUESTIONS - JURISDICTION OF THE COURT - LIMITS - IDENTIFICATION OF THE SUBJECT-MATTER OF THE QUESTION

( EEC TREATY, ART . 177 )

2 . FREE MOVEMENT OF PERSONS - FREEDOM OF ESTABLISHMENT - DIRECTIVES 68/363/EEC AND 68/364/EEC - RETAIL TRADE - NOT APPLICABLE OUTSIDE THE CONTEXT OF FREEDOM OF ESTABLISHMENT

( EEC TREATY, ART . 52; COUNCIL DIRECTIVES 68/363/EEC AND 68/364/EEC )

1 . ALTHOUGH THE COURT HAS NO JURISDICTION UNDER ARTICLE 177 OF THE TREATY TO APPLY A RULE OF COMMUNITY LAW TO A PARTICULAR CASE AND THUS TO JUDGE A PROVISION OF NATIONAL LAW BY REFERENCE TO SUCH A RULE IT MAY, IN THE FRAMEWORK OF THE JUDICIAL COOPERATION PROVIDED FOR BY THAT ARTICLE AND ON THE BASIS OF THE MATERIAL PRESENTED TO IT, PROVIDE A NATIONAL COURT WITH AN INTERPRETATION OF COMMUNITY LAW WHICH MAY BE USEFUL TO IT IN ASSESSING THE EFFECTS OF THAT PROVISION .

WHERE THE QUESTION ASKED MAY BE UNDERSTOOD AS REQUESTING AN INTERPRETATION OF COMMUNITY LAW BUT DOES NOT STATE WHICH PROVISION OR PROVISIONS OF COMMUNITY LAW ARE IN ISSUE, THE COURT MUST EXTRACT FROM ALL THE FACTORS PROVIDED BY THE NATIONAL COURT, AND IN PARTICULAR FROM THE STATEMENT OF GROUNDS CONTAINED IN THE REFERENCE, THE ELEMENTS OF COMMUNITY LAW REQUIRING AN INTERPRETATION, HAVING REGARD TO THE SUBJECT-MATTER OF THE DISPUTE .

2 . ARTICLE 52 OF THE EEC TREATY AND COUNCIL DIRECTIVES 68/363/EEC AND 68/364/EEC IMPLEMENTING ARTICLE 52 IN THE FIELD OF ACTIVITIES OF SELF-EMPLOYED PERSONS IN RETAIL TRADE DO NOT APPLY TO SITUATIONS WHICH ARE PURELY INTERNAL TO A MEMBER STATE, SUCH AS THAT OF A NATIONAL OF A MEMBER STATE WHO HAS NEVER RESIDED OR WORKED IN ANY OTHER MEMBER STATE .

IN CASE 20/87

REFERENCE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE POLICE ( LOCAL CRIMINAL COURT ), FALAISE ( FRANCE ), FOR A PRELIMINARY RULING IN THE CRIMINAL PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

MINISTERE PUBLIC ( PUBLIC PROSECUTOR )

AND

ANDRE GAUCHARD,

ON THE INTERPRETATION OF THE PROVISIONS OF THE EEC TREATY AND COMMUNITY DIRECTIVES ON FREEDOM OF ESTABLISHMENT, FREE MOVEMENT OF GOODS AND FREE COMPETITION,

THE COURT ( FIRST CHAMBER )

COMPOSED OF : G . BOSCO, PRESIDENT OF CHAMBER, R . JOLIET AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : J . L . DA CRUZ VILACA

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

A . GAUCHARD, THE ACCUSED IN THE MAIN PROCEEDINGS, BY F . ROUSSEL, OF THE CAEN BAR,

THE FRENCH GOVERNMENT, BY G . GUILLAUME, ACTING AS AGENT, AND C . COLONNA, DEPUTY AGENT, ASSISTED AT THE HEARING BY J . M . MOUCHET, EXPERT;

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY E . LASNET, LEGAL ADVISER, ACTING AS AGENT,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 24 SEPTEMBER 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 27 OCTOBER 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY A JUDGMENT OF 11 DECEMBER 1986, THE TRIBUNAL DE POLICE, FALAISE ( CALVADOS ), REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION SEEKING TO DETERMINE WHETHER "THE FRENCH TOWN-PLANNING LEGISLATION RELATING TO COMMERCIAL PREMISES, IN PARTICULAR ARTICLES 28 TO 36 OF THE LAW OF 27 DECEMBER 1973, IS COMPATIBLE WITH THE PROVISIONS OF THE TREATY OF ROME AND THE DIRECTIVES OF THE EUROPEAN ECONOMIC COMMUNITY ".

2 THE QUESTION AROSE IN CRIMINAL PROCEEDINGS BROUGHT AGAINST A . GAUCHARD, THE MANAGER OF A SUPERMARKET IN FALAISE, WHO IS CHARGED WITH EXTENDING THE SALES AREA OF HIS PREMISES IN 1979 WITHOUT OBTAINING THE AUTHORIZATION PRESCRIBED BY THE FRENCH LAW OF 27 DECEMBER 1973 ON PLANNING RULES APPLICABLE TO COMMERCIAL PREMISES ( THE "LOI ROYER ").

3 MR GAUCHARD CONTENDED IN HIS DEFENCE THAT THE FRENCH RULES ON AUTHORIZATION FOR THE OPENING AND EXTENSION OF SUPERMARKETS WERE CONTRARY TO THE PROVISIONS OF THE TREATY INASMUCH AS THEY DISCRIMINATED BETWEEN COMMERCIAL UNDERTAKINGS, AND HE REQUESTED THE TRIBUNAL DE POLICE, FALAISE, TO REFER THE QUESTION SET OUT ABOVE TO THE COURT FOR A PRELIMINARY RULING .

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

5 IN VIEW OF THE WAY IN WHICH THE QUESTION IS WORDED, IT SHOULD FIRST OF ALL BE POINTED OUT THAT ALTHOUGH THE COURT HAS NO JURISDICTION UNDER ARTICLE 177 OF THE TREATY TO APPLY A RULE OF COMMUNITY LAW TO A PARTICULAR CASE AND THUS TO JUDGE A PROVISION OF NATIONAL LAW BY REFERENCE TO SUCH A RULE IT MAY, IN THE FRAMEWORK OF THE JUDICIAL COOPERATION PROVIDED FOR BY THAT ARTICLE AND ON THE BASIS OF THE MATERIAL PRESENTED TO IT, PROVIDE A NATIONAL COURT WITH AN INTERPRETATION OF COMMUNITY LAW WHICH MAY BE USEFUL TO IT IN ASSESSING THE EFFECTS OF THAT PROVISION .

6 ALTHOUGH THE QUESTION ASKED MAY THEREFORE BE UNDERSTOOD AS REQUESTING AN INTERPRETATION OF COMMUNITY LAW, IT MERELY MENTIONS "EUROPEAN COMMUNITY LAW" AND DOES NOT STATE WHICH PROVISION OR PROVISIONS OF COMMUNITY LAW ARE IN ISSUE .

7 IN SIMILAR CIRCUMSTANCES THE COURT HAS ALREADY HELD THAT IT MUST EXTRACT FROM ALL THE FACTORS PROVIDED BY THE NATIONAL COURT, AND IN PARTICULAR FROM THE STATEMENT OF GROUNDS CONTAINED IN THE REFERENCE, THE ELEMENTS OF COMMUNITY LAW REQUIRING AN INTERPRETATION, HAVING REGARD TO THE SUBJECT-MATTER OF THE DISPUTE ( JUDGMENT OF 29 NOVEMBER 1978 IN CASE 83/78 PIGS MARKETING BOARD V REDMOND (( 1978 )) ECR 2347 ).

8 IT IS CLEAR FROM THE STATEMENT OF GROUNDS CONTAINED IN THE REFERENCE THAT THE TRIBUNAL DE POLICE, FALAISE, CONSIDERS THAT THE PRIOR AUTHORIZATION WHICH A TRADER IN FRANCE MUST OBTAIN IN ORDER TO OPERATE A SALES AREA EXCEEDING 1 000 M2 OR 1 500 M2, DEPENDING ON THE POPULATION OF THE COMMUNE CONCERNED, "CLEARLY CONSTITUTES A RESTRICTION ON FREEDOM OF ESTABLISHMENT, EVEN IF SUCH A RESTRICTION IS PROMPTED BY THE WISH TO PROTECT A CLASS OF TRADERS THAT IS THREATENED WITH EXTINCTION ".

9 IN THE LIGHT OF THOSE CONSIDERATIONS, IT IS CLEAR THAT THE NATIONAL COURT SEEKS TO DETERMINE WHETHER NATIONAL RULES SUCH AS THE FRENCH LAW ON PLANNING RULES APPLICABLE TO COMMERCIAL PREMISES ARE CONTRARY TO THE PRINCIPLE OF FREEDOM OF ESTABLISHMENT . THE QUESTION PUT TO THE COURT MUST THEREFORE BE REFORMULATED SO AS TO CONCERN THE INTERPRETATION OF THE COMMUNITY PROVISIONS ON FREEDOM OF ESTABLISHMENT, AND IN PARTICULAR ARTICLE 52 OF THE EEC TREATY AND COUNCIL DIRECTIVES 68/363/EEC AND 68/364/EEC OF 15 OCTOBER 1968 IMPLEMENTING ARTICLE 52 IN RESPECT OF ACTIVITIES OF SELF-EMPLOYED PERSONS IN RETAIL TRADE ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( II ), PP . 496 AND 501 ).

10 FOR THE PURPOSES OF THE REPLY TO BE GIVEN TO THAT QUESTION, IT SHOULD BE STRESSED THAT IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT THE UNDERTAKING OPERATING THE SUPERMARKET IN QUESTION IS FRENCH AND IS ESTABLISHED IN FRANCE, AND ITS MANAGER, THE ACCUSED, IS OF FRENCH NATIONALITY AND RESIDES IN FRANCE; THE PRESENT CASE THEREFORE CONCERNS A SITUATION PURELY INTERNAL TO A MEMBER STATE .

11 AS THE COURT STATED IN ITS JUDGMENT OF 12 FEBRUARY 1987 IN CASE 221/85 COMMISSION V KINGDOM OF BELGIUM (( 1987 )) ECR 719, WHICH ITSELF CONCERNED THE PRINCIPLE OF FREEDOM OF ESTABLISHMENT LAID DOWN IN ARTICLE 52 OF THE EEC TREATY, ARTICLE 52 IS INTENDED TO ENSURE THAT ALL NATIONALS OF MEMBER STATES WHO ESTABLISH THEMSELVES IN ANOTHER MEMBER STATE, EVEN IF THAT ESTABLISHMENT IS ONLY SECONDARY, FOR THE PURPOSE OF PURSUING ACTIVITIES THERE AS A SELF-EMPLOYED PERSON RECEIVE THE SAME TREATMENT AS NATIONALS OF THAT STATE AND IT PROHIBITS, AS A RESTRICTION ON FREEDOM OF ESTABLISHMENT, ANY DISCRIMINATION ON GROUNDS OF NATIONALITY .

12 THE ABSENCE OF ANY ELEMENT GOING BEYOND A PURELY NATIONAL SETTING IN A GIVEN CASE THEREFORE MEANS, IN MATTERS OF FREEDOM OF ESTABLISHMENT JUST AS IN ANY OTHER SPHERE, THAT THE PROVISIONS OF COMMUNITY LAW ARE NOT APPLICABLE TO SUCH A SITUATION .

13 THE ANSWER TO THE QUESTION ASKED BY THE TRIBUNAL DE POLICE, FALAISE, MUST THEREFORE BE THAT ARTICLE 52 OF THE EEC TREATY AND COUNCIL DIRECTIVES 68/363/EEC AND 68/364/EEC IMPLEMENTING ARTICLE 52 IN THE SPECIFIC FIELD OF ACTIVITIES OF SELF-EMPLOYED PERSONS IN RETAIL TRADE DO NOT APPLY TO SITUATIONS WHICH ARE PURELY INTERNAL TO A MEMBER STATE, SUCH AS THAT OF A NATIONAL OF A MEMBER STATE WHO HAS NEVER RESIDED OR WORKED IN ANY OTHER MEMBER STATE .

COSTS

14 THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROSECUTION PENDING BEFORE THE NATIONAL COURT, COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT ( FIRST CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DE POLICE, FALAISE, BY JUDGMENT OF 11 DECEMBER 1986, HEREBY RULES :

ARTICLE 52 OF THE EEC TREATY AND COUNCIL DIRECTIVES 68/363/EEC AND 68/364/EEC IMPLEMENTING ARTICLE 52 IN RESPECT OF ACTIVITIES OF SELF-EMPLOYED PERSONS IN RETAIL TRADE DO NOT APPLY TO SITUATIONS WHICH ARE PURELY INTERNAL TO A MEMBER STATE, SUCH AS THAT OF A NATIONAL OF A MEMBER STATE WHO HAS NEVER RESIDED OR WORKED IN ANY OTHER MEMBER STATE .