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