Case C‑284/12, Lufthansa v Flughafen Frankfurt-Hah

Court further clarifies role of national courts with regard to standstill principle of Article 108(3) TFEU

>> Flughafen Frankfurt-Hah (FFH), operator of Frankfurt Hahn Civil Airport, was owned, until January 2009, 65% by Fraport AG, 17.5% by the German federal state of Rhineland-Palatinate and 17.5% by the German federal state of Hessen. Fraport AG was a public company listed on a stock exchange and owned, as to the majority of its shares, by   Germany, the federal state of Hessen and the city of Frankfurt am Main.

FFH had generated annual losses of several million euros since the beginning of its activities. On 31 December 2011, those losses amounted to around EUR 197 million. Those were covered, until 2009, by Fraport AG on the basis of an agreement for the transfer of profits. On 1 January 2009, however, Fraport AG sold its shares to the federal state of Rhineland-Palatinate for the token sum of EUR 1.  

Ryanair was responsible for over 95% of passenger traffic through Frankfurt Hahn Airport. According to the schedule of fees of that airport for 2001, airlines using it had to pay a fee of EUR 4.35 per departing passenger. However, Ryanair was not charged any fee for take-off, approach, landing or use of the infrastructure of the airport since it exclusively used planes which, in accordance with that schedule, gave it an exemption, namely planes whose weight at take-off is between 5.7 and 90 tons.

The schedule of fees of Frankfurt Hahn Airport for 2006 was based on a grid drawn up on the basis of the number of passengers transported per year by an airline from that airport, the range being from EUR 5.35 for less than 100 000 passengers per year to EUR 2.24 for 3 million or more passengers. That schedule also made the exemption from landing and take-off fees, as well as those relating to the provision of air navigation services and ground handling services, dependent on the condition that the duration of ground handling assistance did not exceed 30 minutes. That schedule also provided for the grant of ‘marketing support’ for the opening of new air routes. The amount of that support was determined on the basis of the total volume of passengers transported by the airline concerned. Ryanair received that support. Considering that the business practices of FFH constituted State aid which had not been notified to the Commission and therefore had been granted in breach of Article 108(3) TFEU, Lufthansa brought an action before the Landgericht Bad Kreuznach. 

On 17 June 2008 the Commission decided to initiate a formal investigation procedure under Article 108(2) TFEU regarding possible State aid granted by Germany to FFH and Ryanair. The measures covered by the decision included the reduction in airport fees and marketing support provisions for the benefit of Ryanair. In that decision the Commission reached a preliminary view that each of the measures in question was selective and constituted State aid within the meaning of Article 107(1) TFEU, unless it satisfied the private investor principle. 

The Oberlandesgericht Koblenz therefore sent the Commission a request for an opinion pursuant to point 3.2 of the Commission Notice on the enforcement of State aid law by national courts. In its opinion the Commission stated that the Oberlandesgericht Koblenz itself was not required to assess whether the measures in question could or could not be classified as State aid as it could take the decision of 17 June 2008 as a basis for drawing all the necessary inferences from the infringement of Article 108(3) TFEU. With regard to the substance, the Commission stated that the measures in question were both imputable to the State and selective.

Considering, however, that it had to assess whether the measures at issue constituted State aid and, in particular, having doubts as to the selective nature of those measures, the Oberlandesgericht Koblenz decided to stay proceedings and inter alia referred the question whether, where, in accordance with Article 108(3) TFEU, the Commission had initiated a formal investigation procedure under Article 108(2) TFEU with regard to a State measure which had not been notified and was being implemented, a national court hearing an application for the cessation of the implementation of that measure and the recovery of payments already made was required to draw the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure.

The Court first of all pointed out that Article 108(3) TFEU established a prior control of plans to grant new aid (see Case 120/73 Lorenz [1973] and Case C‑199/06 CELF and Ministre de la Culture et de la Communication (‘CELF I’) [2008]). The aim of that system of prior control was therefore that only compatible aid might be implemented. In order to achieve that aim, the implementation of planned aid was to be deferred until the doubt as to its compatibility is resolved by the Commission’s final decision.

The Court held that the implementation of that system of control was a matter for both the Commission and the national courts, their respective roles being complementary but separate (see Case C-39/94 SFEI and Others [1996]; Joined Cases C-261/01 and C‑262/01 van Calster and Others [2003], and Case C-368/04 Transalpine Ölleitung in Österreich [2006] ). Whilst assessment of the compatibility of aid measures with the common market fell within the exclusive competence of the Commission, subject to review by the Courts of the European Union, it was for the national courts to ensure the safeguarding, until the final decision of the Commission, of the rights of individuals faced with a possible breach by State authorities of the prohibition laid down by Article 108(3) TFEU.

The Court stressed that national courts must offer to individuals the certain prospect that all the appropriate conclusions would be drawn from an infringement of the last sentence of Article 108(3) TFEU, in accordance with their national law, as regards the validity of measures giving effect to the aid, the recovery of financial support granted in disregard of that provision and possible interim measures.The objective of the national courts’ tasks was therefore to pronounce measures appropriate to remedy the unlawfulness of the implementation of the aid, in order that the aid did not remain at the free disposal of the recipient during the period remaining until the Commission made its decision (Case C-1/09 CELF and Ministre de la Culture et de la Communication [2010]).

The Court held that the initiation by the Commission of the formal examination procedure under Article 108(2) TFEU could not therefore release national courts from their duty to safeguard the rights of individuals faced with a possible breach of Article 108(3) TFEU. However, the scope of that obligation might vary, depending on whether or not the Commission had initiated the formal examination procedure with regard to the measure at issue in the proceedings before the national court. In a situation where the Commission had  not yet initiated the formal examination procedure and had therefore not yet given a decision as to whether the measures under consideration were capable of constituting State aid, the national courts, seised of a request that they should draw the appropriate conclusions from a possible infringement of the last sentence of Article 108(3) TFEU, might have cause to interpret and apply the concept of aid with a view to determining whether those measures should have been notified to the Commission. Thus it was for those courts to verify, inter alia, whether the measure at issue constituted an advantage and whether it was selective within the meaning of Article 107(1) TFEU.

The Court held that  where the Commission had initiated the formal examination procedure with regard to a measure which was being implemented, national courts were required to adopt all the necessary measures with a view to drawing the appropriate conclusions from an infringement of the obligation to suspend the implementation of that measure. To that end, national courts might decide to suspend the implementation of the measure in question and order the recovery of payments already made. They might also decide to order provisional measures in order to safeguard both the interests of the parties concerned and the effectiveness of the Commission’s decision to initiate the formal examination procedure. Where they entertained doubts as to whether the measure at issue constituted State aid within the meaning of Article 107(1) TFEU or as to the validity or interpretation of the decision to initiate the formal examination procedure, national courts might seek clarification from the Commission and, in accordance with the second and third paragraphs of Article 267 TFEU, as interpreted by the Court, they might or must refer a question to the Court for a preliminary ruling (see Case C-222/04 Cassa di Risparmio di Firenze and Others [2006]). 

Text of judgment



Case C‑262/12, Vent De Colère and Others

Court further defines first condition article 107(1) TFEU

>> This case concerned the question whether a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price that was financed by final consumers must be regarded as an intervention by the State or through State resources within the meaning of Article 107(1) TFEU.

The Court first of all stated that, while categorisation as State aid within the meaning of Article 107(1) TFEU presupposes that four conditions were met, namely, that there was an intervention by the State or through State resources, that the intervention was liable to affect trade between Member States, that it conferred a selective advantage on the beneficiary and that it distorted or threatened to distort competition, the present question concerned the first of those conditions only.
(see Case C‑677/11 Doux Élevage and Coopérative agricole UKL-ARREE [2013])

The Court reiterated that for it to be possible to classify advantages as State aid, first, they must be granted directly or indirectly through State resources and, secondly, that grant must be attributable to the State (see, Case C‑482/99 France v Commission [2002]).  The Court held that it was clear that the offset mechanism at issue in the main proceedings was established by law and must therefore be regarded as attributable to the State.   As regards, in the second place, the condition that the advantage must be granted directly or indirectly through State resources, the Court recalled that measures not involving a transfer of State resources might still fall within the concept of aid (see, to that effect, Case C‑387/92 Banco Exterior de España [1994]; and Case C‑6/97 Italy v Commission [1999]).

The Court stated that the concept of ‘intervention through State resources’ was intended to cover, in addition to advantages granted directly by the State, those granted through a public or private body appointed or established by that State to administer the aid (see, to that effect, inter alia, Case 78/76 Steinike & Weinlig [1977]).

The Court stressed that Article 107(1) TFEU covered all the financial means by which the public authorities might actually support undertakings, irrespective of whether or not those means were permanent assets of the public sector. Therefore, even if the sums corresponding to the measure in question were not permanently held by the Treasury, the fact that they constantly remained under public control, and therefore available to the competent national authorities, was sufficient for them to be categorised as State resources.

The Court found that  Article 107(1) TFEU must be interpreted as meaning that a mechanism for offsetting in full the additional costs imposed on undertakings because of an obligation to purchase wind-generated electricity at a price higher than the market price that was financed by all final consumers of electricity in the national territory, constitutes an intervention through State resources.




Joined Cases C‑214/12 P, C‑215/12 P and C‑223/12 P, Land Burgenland, Austria and Grawe

Court further defines scope of private investor test and relevance tender procedure


>> By their appeals, Land Burgenland (Case C214/12 P) and Austria (Case C223/12 P) sought to have set aside the judgment of the General Court of the European Union of 28 February 2012 in Joined Cases T268/08 and T281/08 Land Burgenland and Austria v Commission [2012]  (‘the Burgenland judgment’) dismissing their actions for annulment of Commission Decision 2008/719/EC of 30 April 2008 on State aid C 56/06 (ex NN 77/06) implemented by Austria for the privatisation of Bank Burgenland.

By its appeal (Case C215/12 P), Grazer Wechselseitige Versicherung AG (‘GRAWE’) sought to have set aside the judgment of the General Court of the European Union of 28 February 2012 in Case T282/08 Grazer Wechselseitige Versicherung v Commission [2012] dismissing its action for annulment of the contested decision.

Until its privatisation, HYPO Bank Burgenland AG (‘BB’) was a regional bank taking the form of a company limited by shares under Austrian law with its registered office in Eisenstadt (Austria). In 2005, BB had a balance sheet value of EUR 3.3 billion and was wholly owned by Land Burgenland (the Province of Burgenland).

Under Paragraph 4 of the Law on the mortgage bank of the Province of Burgenland (Landes-Hypothekenbank Burgenland-Gesetz, LGBl. No 58/1991), as amended by the law published in LGBl. No 63/1998, if BB defaulted, the Province of Burgenland was liable as deficiency guarantor under Paragraph 1356 of the Austrian Civil Code for all the bank’s liabilities. Under the provisions of that law, the creditors of that bank had direct rights against the guarantor, which was, however, only required to act when the assets of that bank were not sufficient to cover the debts.

That performance guarantee system for public credit institutions (called ‘Ausfallhaftung’), particularly the guarantee provided by that province in favour of BB and its predecessors, had existed in a virtually unchanged form since 1928. The system covered neither a specific period nor a specific amount.

Following an agreement between the Commission of the European Communities and  Austria, on the basis of which Commission Decision C(2003) 1329 final of 30 April 2003, relating to aid E 8/02, was adopted (OJ 2003 C 175, p. 8), Ausfallhaftung had to be abolished by 1 April 2007. As a general rule, all liabilities existing on 2 April 2003 continued to be covered by Ausfallhaftung until their expiry. After that, Ausfallhaftung could be maintained between 2 April 2003 and 1 April 2007 for newly created liabilities provided that they would expire by 30 September 2017.

After two unsuccessful attempts in 2003 and in 2005, the Province of Burgenland launched a third procedure for the privatisation of BB, with the investment bank HSBC being entrusted to carry it out. That procedure started in October 2005 with the publication in the press of a call for tenders.

Two bidders, one being GRAWE, an Austrian undertaking offering a range of insurance services, financial services and leasing which, in 2006, held significant direct stakes in two entities in the banking and investment sector, together with GW Beteiligungserwerbs- und -verwaltungs-GmbH, and the other being an Austro-Ukrainian consortium consisting of the Austrian undertakings SLAV AG and SLAV Finanzbeteiligung GmbH and the Ukrainian joint-stock companies Ukrpodshipnik and Ilyich (‘the Consortium’), made binding offers. Those offers subsequently formed the subject of an individual examination and of contractual negotiations which ended on 4 March 2006.

On 5 March 2006, the Province of Burgenland awarded BB to GRAWE despite the purchase price offered by GRAWE (EUR 100.3 million) being significantly lower than the price offered by the Consortium (EUR 155 million). The decision was based, in particular, on a written recommendation by HSBC, supplemented by oral explanations to the members of the Government of the Province of Burgenland on the day of the decision. HSBC’s recommendation essentially stated that, although on the basis of the proposed purchase price the decision should be made in favour of the Consortium, it was recommended that BB be sold to GRAWE, in view of the other selection criteria, namely the reliability of the purchase price payment, the continued operation of BB while avoiding the use of Ausfallhaftung, capital increases and transaction security.

The sale of BB, which was formally approved by the authorities of the Province of Burgenland on 7 March 2006, was closed on 12 May 2006. Before that closing, BB issued bonds, within the framework of Ausfallhaftung, in the amount of EUR 700 million, EUR 320 million of which had been foreseen under the terms of the privatisation, the ‘additional’ bonds of EUR 380 million not being included, according to point 35 of the contested decision, in the draft contracts with GRAWE and the Consortium.

On 4 April 2006, the Commission received a complaint from the Consortium claiming that  Austria had infringed State aid rules during the privatisation of BB. The Consortium complained, inter alia, that the tender procedure, which had been unfair, untransparent and discriminatory towards it, had resulted in the sale of BB not to the highest bidder, namely the Consortium, but to GRAWE.

To determine whether GRAWE had received a selective advantage, the Commission examined whether the Province of Burgenland had behaved like any seller operating in a market economy (the ‘private vendor’ test). In that respect, the Commission observed that a private vendor might accept the lower bid instead of the higher bid in two situations.

The first was the situation in which it was obvious that the sale to the highest bidder was not realizable.   According to the Commission, not only was there no reason to doubt that the Consortium could pay the purchase price of EUR 155 million that it offered, there was also no indication or any evidence that the FMA would have prohibited BB’s sale to the Consortium.

The second situation covered the case where consideration of factors other than the price was justified, subject to the proviso that only those factors which would have been taken into consideration by a private vendor were taken into account, which, according to the Commission, excluded risks stemming from potential liability to make payment under a guarantee which had to be classified as State aid, such as Ausfallhaftung.

In that respect, the Commission explained that it was apparent from the case-law that the role of the State as the seller of an undertaking and its obligations in its capacity as a public authority should not be mixed up. No private vendors would have entered into a guarantee that did not conform to market conditions and the decision relating to the abolition of Ausfallhaftung confirms that Ausfallhaftung was not granted on those conditions.

In those circumstances, the Commission concluded that  Austria had unlawfully granted State aid in favour of GRAWE in relation to the privatisation of BB, in breach of Article 108(3) TFEU, and that that aid was incompatible with the common market.  

Private investor test

In their first argument, the Province of Burgenland,  Austria and GRAWE claimed, in essence, that the General Court failed to appreciate, in the light of Ausfallhaftung’s characteristics, both the role of the Province of Burgenland as owner and shareholder of BB and, therefore, the private investor test. However, the Court found that the General Court rightly concluded that Ausfallhaftung could not be taken into account when assessing the conduct of the Austrian authorities in the light of the private vendor test and that, consequently, the Commission could not be criticised for having rejected Ausfallhaftung’s relevance when evaluating the offers submitted by the Consortium and by GRAWE.

The Court held that concerning the examination carried out in that respect by the General Court, it was apparent from the Burgenland and GRAWE judgments that the General Court did not base its rejection of the arguments of the Province of Burgenland,  Austria and GRAWE on the fact that Ausfallhaftung was established by law, contrary the what those parties claimed. The General Court examined whether Ausfallhaftung had to be taken into account when implementing the private vendor test and found that a private vendor would not have entered into such a guarantee.

The Court found that the Province of Burgenland,  Austria and GRAWE did not put forward any argument liable to put that finding into doubt, but claimed themselves that Ausfallhaftung was a State aid, as the Commission had moreover found in Decision C(2003) 1329 final. In those circumstances, and since, by granting aid, a Member State pursued, by definition, objectives other than that of making a profit from the resources granted to an undertaking belonging to it, it must be held that those resources were, in principle, granted by the State exercising its prerogatives as a public authority.

The Province of Burgenland also claimed that the General Court had infringed Article 107(1) TFEU by holding that the Commission did not err by establishing BB’s market value on the basis of the Consortium’s bid, without taking into account the independent studies in its possession or having another study carried out.

The Court first of all reiterated that that the market price was the highest price which a private investor acting under normal competitive conditions was ready to pay for a company in the situation it was in (see Case C390/98 Banks [2001] and Case C277/00 Germany v Commission [2004]).

The Court added that for the purposes of checking the market price, the national authorities might take into consideration, in particular, the form of the transfer of company, for example public tendering, deemed to ensure that a sale took place under market conditions or any expert’s report prepared at the time of the transfer (see, to that effect, Case C214/07 Commission v France [2008], on which I wrote this post).

The Court thus concluded that the General Court was correct to find, that, where a public authority proceeded to sell an undertaking belonging to it by way of an open, transparent and unconditional tender procedure, it could be presumed that the market price corresponded to the highest offer, provided that it was established, first, that that offer was binding and credible and, secondly, that the consideration of economic factors other than the price was not justified.

According to the Court, the General Court was also correct in holding that the highest bid submitted in a tender procedure which was unlawful on account of the presence of unlawful conditions could nevertheless correspond to the market price where the deficiencies of the conditions of the call for tenders did not affect the amount of that bid by pushing it lower.

Since none of the other grounds raised by the Province of Burgenland, Austria and GRAWE in support of their appeals can succeed, those appeals were dismissed.

Case C‑280/11 P, Access Info Europe

Note on positions of Member States revision Regulation 1049/2001 subject to public access

>> By this appeal, the Council sought to have set aside the judgment of 22 March 2011 in Case T‑233/09 Access Info Europe v Council [2011] ECR II‑1073. The General Court annulled the Council’s decision of 26 February 2009 refusing to let Access Info Europe have access to certain information contained in a note of 26 November 2008 from the Secretariat General of the Council to the Working Party on Information, set up by the Council, concerning stating the positions of the Member States with regard to the revision of Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents.
By its first ground of appeal, the Council submitted that the General Court disregarded the balanced approach laid down both in primary law (Article 207(3) EC and Article 255 EC, applicable ratione temporis) and secondary law (recital 6 to Regulation No 1049/2001 and the first subparagraph of Article 4(3) thereof) between, on the one hand, the wider right of access to documents relating to the legislative activity of the institutions and, on the other, the need to preserve the effectiveness of the decision-making process. In particular, the General Court  construed the first subparagraph of Article 4(3) in such a way as to attribute undue and excessive weight to the transparency of the decision-making process, without taking any account of the needs associated with the effectiveness of that process.

The Court first of all stressed that  Regulation 1049/200 reflected the intention expressed in  Article 1(2) TEU of marking a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions were taken as openly as possible and as closely as possible to the citizen. The Court held that the public right of access to documents of the institutions was related to the democratic nature of those institutions (see Case C‑506/08 P Sweden v MyTravel and Commission [2011] on which I wrote this post).

The Court held that to that end, Regulation No 1049/2001 was designed to confer on the public as wide a right of access as possible to documents of the institutions. However, that right was according to the Court none the less subject to certain limitations based on grounds of public or private interest.  Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly. (see Case C‑266/05 P Sison v Council [2007], on which I wrote this post).

The Court found that if the institution concerned decided to refuse access to a document which it had been asked to disclose, it must, in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected by the exception  upon which it was relying. Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (Case C‑506/08 P Sweden v MyTravel and Commission [2011]).

The Court held that, far from disregarding the balance between the principle of transparency and the preservation of the effectiveness of the Council’s decision-making process, the General Court,  examined the substance of all the arguments put forward by the Council to justify the application, in the circumstances, of the exception referred to in the first subparagraph of Article 4(3) of Regulation 1049/2001. Contrary to the assertions made by the Council, the Court found that the General Court did take account of the needs associated with the effectiveness of the decision-making process: as it carried out a detailed examination of the arguments adduced by the Council to justify the application, in the circumstances, of the exception concerning the protection of the Council’s decision-making process.

The Council also alleged that the General Court’s reasoning was inconsistent with the case-law of the Court of Justice which allows the institutions to rely on general considerations in order to refuse to disclose certain categories of document. The Court reiterated that in order to justify refusing access to a document, it was not sufficient, in principle, for the document to fall within an activity or an interest referred to in Article 4 of Regulation No 1049/2001, as the institution concerned must also explain how access to that document could specifically and actually undermine the interest protected by an exception laid down in that provision. The Court stresssed that it was nevertheless open to that institution to base its decisions in that regard on general presumptions which applied to certain categories of document, as similar general considerations were likely to apply to requests for disclosure relating to documents of the same nature (see Case C‑139/07 P Commission v Technische Glaswerke Ilmenau [2010], on which I wrote this post).

The Court held that in the present case, even if it were to be taken as established that the Council had argued at first instance that it was entitled to refuse access to a document, such as the requested document, by relying on a presumption based on the considerations   concerning the need to protect the delegations’ room for manœuvre during preliminary discussions on the Commission’s legislative proposal, it was clear, first, that, the General Court examined those considerations and that it concluded that they were not a sufficient basis for application of the exception under the first subparagraph of Article 4(3) of Regulation No 1049/2001. Consequently, the Council could according to the Court not reasonably argue that it was entitled to refuse access to the requested document by relying on a presumption based on such considerations. The Court thus found that the arguments seeking to show that the General Court did not take into account the reasons why the Council had considered that those general considerations were applicable to the requested document were ineffective.

Text of judgment

Case C‑539/11, Ottica New Line di Accardi Vincenzo

Regional law making establishment of new opticians’ practices subject to criteria based on population density and distance between practices likely to infringe freedom of establishment 

>> This request for a preliminary ruling concerns the interpretation of Articles 49 TFEU and 56 TFEU. The request had been made in proceedings between Ottica New Line di Accardi Vincenzo (‘Ottica New Line’) and the Comune di Campobello di Mazara (pictured) concerning the latter’s decision to authorise Fotottica Media Visione di Luppino Natale Fabrizio e. C. s.n.c. (‘Fotottica’) to carry out the activity of optician, on a permanent basis, in the territory of that municipality.

By decision of 18 December 2009, the comune di Campobello di Mazara authorised Fotottica to establish an optician’s shop in its territory. It was not disputed that that establishment did not comply the limits relating to population density and on distance between opticians’ shops laid down in that provision. Ottica New Line contested that decision

The referring court asked, in essence, whether European Union law precluded regional legislation, such as that at issue in the main proceedings, which limited the grant of authorisation for the establishment of a new optician’s shop in providing that:
–        in each geographical area, only one optician’s shop may be established, in principle, for every 8 000 residents, and
–        each new optician’s shop must, in principle, be a minimum distance of 300 metres from an existing optician’s shop.

The Court first of all held that the legislation at issue in the main proceedings governed only the conditions for establishing an optician’s shop in a part of Italian territory. In those circumstances, the provisions concerning the freedom to supply services, which applied only if those relating to the freedom of establishment did not apply, were according to the Court not relevant (see, by analogy, Case C‑384/08 Attanasio Group [2010]).

The Court also found that pursuant to Article 2(2)(f) of Directive 2006/123, the activities of the opticians at issue in the main proceedings were excluded from the scope of that directive.The Court found that, accordingly, the restrictions at issue in the main proceedings need to be examined only with regard to their compatibility with the TFEU and, more specifically, with Article 49 thereof. The Court held that in accordance with Article 168(7) TFEU, as interpreted in its case‑law, European Union law did not detract from the power of the Member States to adopt provisions aimed at organising their health services. In exercising that power, however, the Member States must comply with European Union law, in particular the provisions of the TFEU on the freedom of establishment, which prohibited the Member States from introducing or maintaining unjustified restrictions on the exercise of that freedom in the healthcare sector (see, to that effect, Joined Cases C‑171/07 and C‑172/07 Apothekerkammer des Saarlandes and Others [2009]).

Whether there was a restriction on the freedom of establishment

The Court reiterated that any national measure which, albeit applicable without discrimination on grounds of nationality, was 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 TFEU (Case C-140/03 Commission v Greece (2005)).

The Court stressed that a national rule which made  the establishment of a service provider from another Member State conditional upon the issue of prior authorisation fell within that category, since it was capable of hindering the exercise by that service provider of the freedom of establishment by preventing it from freely pursuing its activities through a fixed place of business. (Case C‑169/07 Hartlauer [2009]).


In so far as concerns the dispute in the main proceedings, the Court notes, firstly, that the regional legislation concerned made  the establishment of new opticians’ shops subject to prior administrative authorisation. Secondly, that legislation took account of the ratio between population density and the number of opticians’ shops, with a view to distributing supply throughout the given territory in a rational manner. The Court found that, in authorising the establishment of only a limited number of opticians’ shops in a given territory, that legislation thus restricted the access of opticians to their economic activity in that territory. Thirdly, that legislation was capable of preventing opticians from freely choosing where to exercise their independent activity, in so far as those seeking to establish shops were required to observe a minimum distance of 300 metres from existing opticians’ shops.

The Court thus found that the effect of such rules was thus to hinder and render less attractive the exercise by opticians from other Member States of their activities in Italian territory through a fixed place of business. Consequently, the regional legislation amounted to a restriction on the freedom of establishment within the meaning of Article 49 TFEU.

Justification for the restriction on the freedom of establishment

The Court held hat restrictions on the freedom of establishment which were applicable without discrimination on grounds of nationality might be justified by overriding reasons relating to the general interest, provided that the restrictions were appropriate for securing attainment of the objective pursued and did not go beyond what was necessary for attaining that objective.

The Court reiterated that restrictions on the freedom of establishment may be justified by the general objective of the protection of public health (see: Joined Cases C‑171/07 and C‑172/07 Apothekerkammer des Saarlandes and Others [2009]). That general objective might seek, more specifically, to ensure even distribution of healthcare providers throughout the national territory.
case C-570/07, Blanco Pérez en Chao Gómez (2010).

The Court held that in pursuing such an objective, the establishment of service providers, such as pharmacies, might be subject to planning, including prior authorisation for the establishment of opticians’ shops, where that planning proved indispensable for filling in possible gaps in access to public health services and for avoiding the duplication of structures, in so far as  the opticians at issue provided services aimed at assessing, maintaining or restoring the state of health of patients, with the result that those services were encompassed by the protection of public health.

The Court found that  the  legislation concerned was, 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. None the less, it was also necessary that the way in which the legislation pursued those objectives was coherent. The Court reiterated that it was required that the national legislation as a whole and the various relevant rules were appropriate for ensuring attainment of the objective relied upon only if they genuinely reflected a concern to attain that objective in a consistent and systematic manner.

The Court held that it was ultimately for the national court to determine whether and to what extent Regional Law No 12/2004 satisfied those conditions (see Case 171/88 Rinner-Kühn [1989], and Joined Cases C-4/02 and C-5/02 Schönheit and Becker [2003]). However, the Court points out, first of all, that the legislation laid down conditions which differed for municipalities with fewer than 8 000 residents and those with more than that number. The Court found that it was not inconceivable that the municipalities which fell within the first category were largely free to authorise the establishment of two opticians’ shops in their territory, whereas those in the second category could grant such authorisation only if ‘the existence of territorial needs has been substantiated’ and if those municipalities had gained the prior and mandatory opinion of a committee.The Court concluded that such legislation risked bringing about unequal access to the establishment of opticians’ shops in the various areas of the region concerned. The Court found that the legislation also risked, as of its implementation, failing to ensure an even distribution of opticians’ shops throughout the entire territory concerned and, consequently, an equal level of protection of public health throughout that territory.

Text of judgment


Case C‑625/11 P, PPG and SNF

Article 102(1) Rules of Procedure not just applying to measures published in OJ >> By their appeal, Polyelectrolyte Producers Group GEIE (PPG) (‘PPG’) and SNF SAS (‘SNF’) sought to have set aside the order of the General Court of the European Union of 21 September 2011 in Case T‑268/10 PPG and SNF v ECHA [2011], by which that Court dismissed as inadmissible their action for annulment of the decision of the European Chemicals Agency (ECHA). By that decision, the ECHA identified acrylamide (EC No 201-173-7) as a substance meeting the criteria laid down in Article 57 of  the REACH Regulation (Regulation 1907/2006)  and included acrylamide on the list of substances for future inclusion in Annex XIV to that regulation, in accordance with Article 59 thereof (‘the contested decision’).

Article 57 of the REACH Regulation sets out the substances which may be included in Annex XIV to that regulation, which is a list of substances subject to authorisation.  PPG is a European economic interest grouping which represents the interests of companies that are producers and/or importers of polyelectrolytes, polyacrylamide and/or other polymers containing acrylamide. SNF is one of its member companies. On 25 August 2009, the Netherlands submitted to ECHA a dossier which it had drawn up concerning the identification of acrylamide as a substance fulfilling the criteria set out in Article 57(a) and (b) of the REACH Regulation. Following the procedure set out in Article 59 of the REACH Regulation, ECHA, in the contested decision, identified acrylamide as fulfilling the criteria set out in Article 57 of that regulation and included acrylamide on the candidate list of substances.  On 30 March 2010, the candidate list of substances including acrylamide was published on the ECHA website, in accordance with Article 59(10) of the REACH Regulation.

PPG and SNF raised a single ground of appeal alleging that the General Court erred in law in its interpretation and application of Article 102(1) of its Rules of Procedure and, consequently, infringed the principle of effective judicial protection. They maintain that the 14‑day period referred to in that provision must be applied to all published decisions, not only to those published in the Official Journal of the European Union.

The Court first of all that it was not disputed that a decision of ECHA concerning the inclusion of a substance on the list of candidate substances constituted a challengeable act, for the purposes of the first paragraph of Article 263 TFEU. Article 94(1) of the REACH Regulation provided that an action might be brought against a decision of ECHA, in accordance with Article 263 TFEU, where, inter alia, no right of appeal lied before the Board of Appeal of ECHA. That was the case in respect of decisions taken under Article 59 of the REACH Regulation.

The Court pointed out that in relation to published measures, Article 263(6) TFEU stated that proceedings were to be instituted within two months of the publication of the measure. In accordance with Article 102(1) of the Rules of Procedure of the General Court, where the period of time allowed for commencing proceedings against a measure adopted by an institution ran from the publication of that measure, that period ran from the end of the 14th day after publication of the measure in the Official Journal of the European Union.

The Court held that, contrary to what the General Court found in the order under appeal, it was not apparent from the wording of Article 102(1) of its Rules of Procedure that that article applied only to measures published in the Official Journal of the European Union. Therefore, it could according to the Court not be ruled out that Article 102(1) of the Rules of Procedure of the General Court applied to a measure which was published only on the internet, such as the contested decision. Moreover, in so far as the wording of Article 102(1) of the Rules of Procedure of the General Court could give rase to doubts, it was necessary, in the absence of any imperative reasons to the contrary, to favour an interpretation which did not result in the interested parties’ being time-barred and therefore depriving them of their right to resort to legal proceedings (see Case 117/78 Orlandi v Commission [1979]).

More generally, the Court of Justice pointed out that, where the wording of a provision was unclear, account should be taken of the context of that provision and of the objectives which it pursued (see, to that effect, Case C‑149/11 Leno Merken [2012]).

The Court considered that the objective of the 14‑day time‑limit laid down in Article 102(1) of the Rules of Procedure of the General Court was to ensure that interested parties have sufficient time within which to bring an action against published measures and, consequently, to observe the right to effective judicial protection, as was now laid down in Article 47 of the Charter of Fundamental Rights of the European Union.

The Court held that in so far as it was possible to interpret Article 102(1) of the Rules of Procedure of the General Court as referring to any published measure, irrespective of the means of publication, that provision must be interpreted in that way so as to ensure that the interested parties were not deprived, by relying on an additional 14 days within which to bring an action, of effective judicial protection. The Court found that, consequently, the General Court erred in law in finding that Article 102(1) applied only to measures published in the Official Journal of the European Union and thus declaring the action brought by PPG and SNF inadmissible.

The Court thus found that for that reason the single ground of appeal raised by the appellants must be upheld, and therefore their appeal, and the order under appeal must be set aside. 


Text of judgment


Joined Cases C‑216/12 and C‑217/12, Hliddal and Bornand

Court further defines concept of ‚pay’ in the sense of Article 157(2) TFEU
>> Ms Hliddal and Mr Bornand, both Swiss nationals, reside in Switzerland with their respective families and work as airline captains for an airline in Luxembourg.
They were refused a parental leave allowance on the ground that they did not satisfy the conditions laid down in the Luxembourg Code du Travail, pursuant to which a person claiming parental leave must have an official address and reside continuously in Luxembourg or be covered by the Community regulations.
The Court first of all assesses the applicability of the EC-Swiss Agreement to the cases before the referring court, and hence, the question whether it had jurisdiction to answer the question referred.
The Court held that by expressly referring to Regulation No 1408/71, the EC-Swiss Agreement extended the personal scope of that regulation to cover Swiss nationals. By its question regarding the interpretation of Regulation No 1408/71, the national court sought to ascertain whether a parental leave allowance, such as the allowance at issue in the case before it, fell within the material scope of Regulation No 1408/71, which would mean that the allowance was covered by the reference to that regulation in the EC-Swiss Agreement and could be claimed by a Swiss national. In that regard, moreover, it was of no relevance to the disputes before the referring court that the EC-Swiss Agreement did not refer to Directive 96/34, the directive which, according to the CNPF, the Law of 12 February 1999 introducing parental leave and leave for family reasons was intended to transpose into Luxembourg law. The Court held that in those circumstances, it had jurisdiction to answer the question referred.
The Court furthermore determined whether a parental leave allowance fell to be regarded as ‘pay’ within the meaning of Article 157 TFEU or as a ‘social security benefit’ within the meaning of Regulation No 1408/71.
The Court held that under Article 157(2) TFEU, ‘pay’ means ‘the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker received directly or indirectly, in respect of his employment, from his employer’. 
It is settled case-law that that concept covers any consideration, whether immediate or future, provided that the worker receives it, albeit indirectly, in respect of his employment, from his employer, and irrespective of whether it is received under a contract of employment, by virtue of legislative provisions or on a voluntary basis (see Case C‑262/88 Barber [1990]; Case C‑66/96 Høj Pedersen and Others [1998]; Case C‑236/98 JämO [2000]; and Case C‑147/02 Alabaster [2004]). The Court has held that a worker who exercises a statutory right to parenting leave which carries with it a parenting allowance paid by the State is in a specific situation which cannot be assimilated to that of a man or woman who works, since such leave is characterised by the suspension of the employment contract and, accordingly, of the respective obligations of the employer and the worker (see Case C‑333/97 Lewen [1999], and Case C‑537/07 Gómez-Limón Sánchez‑Camacho [2009]).
It is also settled case-law that a benefit may be regarded as a social security benefit in so far as it is granted to the recipients, without any individual and discretionary assessment of personal needs, on the basis of a legally defined position and relates to one of the risks expressly listed in Article 4(1) of Regulation No 1408/71 (see, inter alia, Case C‑286/03 Hosse [2006]; Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt and Others [2007]; and Case C‑228/07 Petersen [2008]).
The Court held that a benefit such as the parental leave allowance at issue in the main proceedings did not constitute an unemployment benefit. The Court reiterated that in order to distinguish between the various categories of social security benefit, ‘the risk covered’ by each benefit must be taken into consideration. Thus, an unemployment benefit covered the risk associated with the loss of revenue suffered by a worker following the loss of his employment although he was still able to work. A benefit granted if that risk, namely loss of employment, materialized and which was no longer payable if that situation ceased to exist as a result of the claimant’s engaging in paid employment must be regarded as constituting an unemployment benefit (see Case C‑406/04 De Cuyper [2006]).
However, as pointed out by the Court, that was not the position in the case of a person receiving a parental leave allowance such as the allowance at issue in the main proceedings. That person had not lost his employment, but had merely decided to suspend the employment relationship.
The Court also pointed out that, under Article 1(u)(i) of Regulation No 1408/71, ‘the term family benefits meant all benefits in kind or in cash intended to meet family expenses’. The Court reiterated that family benefits were intended to provide social assistance for workers with dependent families in the form of a contribution by society towards their expenses (see Case 104/84 Kromhout [1985]).
The Court held that the phrase ‘to meet family expenses’ which was used in that provision was to be interpreted as referring, in particular, to a public contribution to a family’s budget to alleviate the financial burdens involved in the maintenance of children (Case C‑333/00 Maaheimo [2002]).
The Court held that the purpose underlying a parenting allowance which was designed to enable one of the parents to devote himself or herself to the raising of a young child and which was intended, specifically, as remuneration for bringing up that child, and to meet other costs involved in caring for and raising a child and, as the case may be, to mitigate the financial disadvantages entailed in giving up income from full-time employment was ‘to meet family expenses’ within the meaning of Article 1(u)(i) of Regulation No 1408/71. The Court held that such a benefit must be treated as a ‘family benefit’ within the meaning of Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71 (see Case C‑275/96 Kuusijärvi [1998]).
Specifically, in relation to a career break allowance granted, subject to certain conditions, to a worker taking a break from his or her career using parental leave, the Court reiterated that that type of benefit, which was similar to the parental leave allowance at issue in the main proceedings, must be treated as a family benefit (see Case C‑469/02 Commission v Belgium).
It followed that the parental leave allowance at issue in the main proceedings might not be classified as ‘pay’ within the meaning of Article 157 TFEU and that it constituted a social security benefit with the characteristics of a ‘family benefit’ within the meaning of Regulation No 1408/71.
Accordingly, the answer to the question referred was that Articles 1(u)(i) and 4(1)(h) of Regulation No 1408/71 must be interpreted as meaning that a parental leave allowance, such as the allowance provided for under Luxembourg legislation, constituted a ‘family benefit’ within the meaning of that regulation.



Case C‑77/11, Council v. Parliament

Only President of European Parliament endowing EU budget with binding force


>> In this case, the Grand Chamber of the Court of Justice had to decide on Act 2011/125/EU, Euratom of the President of the European Parliament of 15 December 2010, by which the latter declared that the budgetary procedure initiated under Article 314 TFEU had been completed and that, accordingly, the European Union’s general budget for the financial year 2011 had been definitively adopted   
On 15 December 2009, the Council reminded the Parliament of the Council’s powers under the FEU Treaty as co-author of the legislative act establishing the budget by proposing that the President of the Parliament and the President of the Council should both sign the act establishing the budget.
Notwithstanding the Council’s request, on 17 December 2009 the President of the Parliament adopted and signed the Union’s annual budget for the financial year 2010 alone.
On 12 November 2010, in the course of the budgetary procedure for the financial year 2011, the President of the Council sent to the President of the Parliament a letter in which he pointed out that, following the entry into force of the Treaty of Lisbon, the President of the Council and the President of the Parliament were both required to sign the act establishing the European Union’s annual budget, since those two institutions are now co-authors of that act. That act is to be distinguished from the act of the President of the Parliament declaring, in accordance with Article 314(9) TFEU, that the budget has been definitively adopted.
Also on 15 December 2010, the contested measure was adopted. The single article of that measure, signed only by the President of the Parliament, provides that ‘[t]he procedure initiated under Article 314 TFEU has been completed and the Union’s general budget for the financial year 2011 has been definitively adopted’.
The Council submitted that the Treaty of Lisbon altered the budgetary procedure significantly, making the Parliament and the Council equal partners, inter alia, by abolishing the distinction between compulsory and non-compulsory expenditure and by providing that there was to be a single reading of the draft budget by the two institutions concerned.
In the view of the Council, the principal change was to be found in the introductory paragraph of Article 314 TFEU. That provision, read in conjunction with other Treaty provisions, now required the procedure to be concluded by the joint adoption of a legislative act bearing the signatures of the Presidents of both the institutions concerned. Accordingly, the practice under the Treaty establishing the European Community, whereby the President of the Parliament simply declared that the budgetary procedure had been completed, was. according to the Council, no longer applicable.
The Council argued hat the Union’s annual budget and amending budgets must now, as a result of the reform brought about by the Treaty of Lisbon, be established by a joint legislative act. The Council thus considered the case‑law established by the famous judgment in Case 34/86 Council v Parliament [1986] obsolete. In that case, the Court held that it is the President of the Parliament who formally declares that the budgetary procedure has been brought to a close by the final adoption of the budget and thus endows the budget with binding force vis-à-vis both the institutions and the Member States.
The Court held that the procedure for the establishment of the Union’s budget was governed by the provisions of Article 314 TFEU. The Court pointed out that introductory paragraph of Article 314 TFEU stated that the budget was to be adopted in accordance with a special legislative procedure. The Court held that it was apparent from the very wording of Article 314(9) TFEU that the act based on that provision concluded the procedure for the establishment of the Union’s budget and was signed only by the President of the Parliament.
The Court thus found that, contrary to contentions of the Council and the Kingdom of Spain, the budgetary procedure laid down in Article 314 TFEU was not concluded by an act jointly signed by the Presidents of the Parliament and the Council. It was the act based on Article 314(9) TFEU – by which the President of the Parliament declared, after verifying that the procedure had been conducted lawfully, that the budget had been definitively adopted – which constituted the final stage of the procedure for the adoption of the Union’s budget and endowed the budget with binding force.
The Court held that by stating that the Parliament and the Council were to establish the Union’s budget, the introductory paragraph of Article 314 TFEU served as a reminder that, in accordance with Articles 14(1) TEU and 16(1) TEU, budgetary functions were to be exercised jointly by those two institutions. However, the introductory paragraph of Article 314 TFEU stated that the budget was to be established ‘in accordance with the following provisions’. The Court stated that no provision in Article 314 TFEU provided for the adoption, at the end of the budgetary procedure, of an act which was to be signed by the Presidents of both the Parliament and the Council.
Accordingly, it was the President of the Parliament, in his capacity as organ of that institution, who, by adopting the act based on Article 314(9) TFEU, endowed the Union’s budget with binding force at the conclusion of a procedure characterised by the joint action of the Parliament and the Council 
The Council and the Kingdom of Spain also argued that the contested measure, which was adopted in accordance with a special legislative procedure, was unlawful because, contrary to the requirements of Articles 288 TFEU and 289(2) TFEU, it did not take the form of a regulation, directive or decision. The Court however, held that that argument also had to be rejected.
The Court held that even though the act based on Article 314(9) TFEU was the outcome of a special legislative procedure, it did not, due to the nature of the budget, take the form of a legislative act in the strict sense of the term for the purpose of Articles 288 TFEU and 289(2) TFEU, and was, in any event, a measure open to challenge for the purpose of Article 263 TFEU, since it endowed the Union’s budget with binding force.


Case C‑475/11, Konstantinides

German disciplinary rules on medical professionals possibly incompatible with Article 56 TFEU
>> Dr Konstantinides, a Greek doctor, obtained a diploma of doctor of medicine in Athens (Greece) in 1981. In particular, from 1986 to 1990 he was head of the andrology department of the Athens University Hospital, and since 1990 has practised on his own account in a practice called the ‘Andrology Institute Athens’. He was a member of the association of doctors of Athens and of the Greek association of doctors, and was established in Athens.
Throughout the period from 2006 to 2010 Dr Konstantinides visited Germany for one or two days a month on average, in order to perform andrological surgical operations, within the territory for which the Association of Doctors of the Land of Hesse was competent, in the out-patient surgery department of the medical centre of the Elisabethenstift in Darmstadt (Germany, pictured). Dr Konstantinides’s activity was limited exclusively to performing highly specialised surgical operations, with the other services linked to those operations, such as arranging appointments and providing in-house post-operative care, being entrusted to the staff of that medical centre.
In August 2007 a patient was successfully operated on by Dr Konstantinides in an out-patient operation performed in that medical centre. Following a complaint by that patient disputing the amount of the bill sent to him by Dr Konstantinides, the Association of Doctors of the Land of Hesse carried out an investigation, which led to the bringing of disciplinary proceedings against Dr Konstantinides before the referring court, for infringement of the Regulation on doctors’ fees and breach of the prohibition of unprofessional advertising.
The Association of Doctors of the Land of Hesse considered that Paragraph 3(1) and (3) of the Hesse Law on health professions, which required Dr Konstantinides to observe the Code of professional conduct for doctors in Hesse adopted pursuant to Paragraphs 24 and 25 of that law, was a correct transposition of Directive 2005/36 on the recognition of professional qualifications, in particular Articles 5 and 6, and was consequently consistent with European Union law.
Dr Konstantinides submitted principally that, in accordance with the principle of freedom to provide services, he carried on his activity in Germany on a temporary and occasional basis, and was not therefore subject to the German rules of professional conduct. 
The Court first of all held that national rules such as those in Paragraphs 12(1) and 27(3) of the Code of professional conduct for doctors in Hesse did not fall within the material scope of Article 5(3) of Directive 2005/36.
The Court reiterated that in the procedure established by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it was for the Court to provide the national court with an answer which would be of use to it and enabled it to determine the case before it. In that light, the Court might have to reformulate the questions referred to it (see, inter alia, Case C‑334/95 Krüger [1997]), and Case C‑243/09 Fuß [2010] ). 
To that end, the Court might extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the legislation and the principles of European Union law that required interpretation in view of the subject-matter of the dispute in the main proceedings (see inter alia, Case 83/78 Redmond [1978]; Case C‑56/01 Inizan [2003]).
Whether infringement of Article 56 TFEU
In this respect, the Court observed that in circumstances such as those at issue in the main proceedings,  the compatibility with European Union law of the provisions at issue in the main proceedings must be examined by reference not to Directive 2005/36 but to the principle of freedom to provide services in Article 56 TFEU.
According to settled case-law, Article 56 TFEU requires not only the elimination of all discrimination against providers of services on grounds of nationality or the fact that they are established in a Member State other than that where the services are to be provided, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (see, for a recent example, Case C‑577/10 Commission v Belgium [2012]).
In the present case, the Court observed that, in particular, the concept of restriction covered measures taken by a Member State which, although applicable without distinction, affected the freedom to provide services in other Member States (see, to that effect, inter alia, Case C‑565/08 Commission v Italy [2011], on which I wrote this post.).
The Court held that it was common ground in the main proceedings that the provisions at issue applied without distinction to all doctors providing services in the Land of Hesse. In addition, the Court recalled that rules of a Member State did not constitute a restriction within the meaning of the FEU Treaty solely by virtue of the fact that other Member States applied less strict, or economically more favourable, rules to providers of similar services established in their territory.  The existence of a restriction within the meaning of the Treaty could, according to the Court, not therefore be deduced from the mere fact that doctors established in Member States other than the Federal Republic of Germany had to submit, for calculating their fees for services provided in the territory of the Land of Hesse, to the rules applicable in that Land.
The Court however held that in the absence of any flexibility of the system at issue in the main proceedings, that being for the national court to assess, the application of such a system, which would be liable to have a deterrent effect on doctors from other Member States, would constitute a restriction within the meaning of the Treaty.
Whether justification
The Court reiterated that national measures which are liable to hinder the exercise of fundamental freedoms guaranteed by the Treaty or make it less attractive may be allowed only if they pursue a legitimate objective in the public interest, are appropriate to ensuring the attainment of that objective, and do not go beyond what is necessary to attain the objective pursued (see, inter alia, Case C‑202/11 Las [2013]).
The Court stated that it was for the referring court to examine whether, on the assumption that their application in circumstances such as those described in the order for reference constituted a restriction of the freedom to provide services, the rules at issue in the main proceedings were based on an objective in the public interest. The Court reiterated that in general, the protection of the health and life of humans, as provided for by Article 36 TFEU, and the protection of consumers were among the objectives which might be regarded as overriding reasons in the public interest capable of justifying a restriction of the freedom to provide services (see, to that effect, inter alia, Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006]  and Case C‑143/06 Ludwigs-Apotheke [2007]).
The Court concluded that it was for the referring court to ascertain whether the provisions at issue in the main proceedings constituted a restriction within the meaning of Article 56 TFEU, and, if so, whether they pursued an objective in the public interest, were appropriate to ensuring that it was attained, and did not go beyond what is necessary for attaining it.