Case C‑342/17

Memoria Srl and Antonia Dall’Antonia

v

Comune di Padova

(Request for a preliminary ruling from the Tribunale amministrativo regionale per il Veneto)

(Reference for a preliminary ruling — Restrictions on freedom of establishment — Jurisdiction of the Court — Admissibility of the request for a preliminary ruling — Purely domestic situation — National legislation prohibiting any profit-making activity relating to the safekeeping of cinerary urns — Proportionality test — Coherence of national rules)

Summary — Judgment of the Court (Third Chamber), 14 November 2018

1. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Scope — National legislation conferring a monopoly of services for the safekeeping of cinerary urns — Precluded

   (European Parliament and Council Directive 2006/123, Recital 8 and Art. 1(3))

2. Freedom of establishment — Restrictions — National legislation prohibiting any profit-making activity relating to the safekeeping of cinerary urns — Not permissible — Justification — None

   (Art. 49 TFEU)

1.  See the text of the decision.

   (see paras 41, 42)

2.  Article 49 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which prohibits, even despite the express wishes of the deceased, the recipient of a cinerary urn from entrusting its safekeeping to a third party, and requires him to store the urn in his home, unless it is entrusted to a municipal cemetery, and furthermore prohibits any activity carried out for profit relating, even non-exclusively, to the safekeeping of cinerary urns, on whatever basis and for whatever period.

   In that regard, as regards, first, the justification based on the protection of public health, it admittedly follows from settled case-law of the Court that the protection of public health is one of the overriding reasons in the public interest recognised by EU law and that Member States have a wide margin of discretion in this area (see, to that effect, judgment of 1 June 2010, Blanco Pérez and Chao Gómez, C‑570/07 and C‑571/07, EU:C:2010:300, paragraphs 44, 68 and 106). However, that objective cannot justify the restriction at issue in the main proceedings in so far as cremation ashes, unlike corpses, are biologically inert, since they have been sterilised by heat, and accordingly their safekeeping cannot amount to a constraint imposed by public health considerations.

   As regards, second, the objective of protection of the respect owed to the memory of the deceased, this too is capable of amounting to an overriding reason in the public interest. Nevertheless, it must be noted that there are less stringent measures which make it possible to achieve that objective, such as, in particular, the obligation to ensure the safekeeping of cinerary urns in similar conditions to those of municipal cemeteries and, in the event of cessation of activities, the obligation to transfer those urns to a public cemetery or to return them to the relatives of the deceased.

   (see paras 54, 55, 57, 59, 66, operative part)