CJEU, 3rd chamber, February 13, 2014, No C-162/12

THE COURT (Third Chamber),

1 These requests for a preliminary ruling concern the interpretation of Articles 3 TEU, 4 TEU, 5 TEU, 6 TEU, 49 TFEU, 101 TFEU and 102 TFEU, of Council Regulation (EEC) No 2454/92 of 23 July 1992 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State (OJ 1992 L 251, p. 1), and of Council Regulation (EC) No 12/98 of 11 December 1997 laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State (OJ 1998 L 4, p. 10).

2 The requests have been made in two sets of proceedings, respectively between: (i) Airport Shuttle Express scarl ('Airport Shuttle Express') and Mr Panarisi, on the one hand, and the Comune di Grottaferrata, on the other; and (ii) Società Cooperativa Autonoleggio Piccola arl ('Autonoleggio Piccola') and Mr Vivani, on the one hand, and the Comune di Grottaferrata, on the other. Both sets of proceedings concern the suspension of authorisations to operate a car and driver hire service (noleggio con conducente). Federnoleggio, an association comprising undertakings providing car and driver hire and bus and driver hire, has intervened in support of the applicants in the main proceedings in both disputes.

Legal context

European Union ('EU') law

3 Regulation No 2454/92 was annulled by judgment of 1 June 1994 in Case C-388/92 Parliament v Council [1994] ECR I-2067.

4 Under Article 1 of Regulation No 12/98:

'Any carrier who operates road passenger transport services for hire or reward, and who holds the Community licence ... shall be permitted, under the conditions laid down in this Regulation and without discrimination on grounds of the carrier's nationality or place of establishment, temporarily to operate national road passenger services for hire or reward in another Member State ... without being required to have a registered office or other establishment in that State.

...'

5 Under Article 2(4) of Regulation No 12/98, for the purposes of that regulation, 'vehicles' means 'motor vehicles which, by virtue of their type of construction and equipment, are suitable for carrying more than nine persons - including the driver - and are intended for that purpose'.

6 As stated in Article 2(2)(d) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), that directive does not apply to services in the field of transport falling within the scope of Title VI of Part Three of the FEU Treaty.

Italian law

National legislation

7 Article 3 of Framework Law No 21 of 15 January 1992 on the carriage of passengers by non-scheduled public car and coach services (Gazzetta Ufficiale della Reppublica Italiana - GURI - No 18 of 23 January 1992), as amended by Decree-Law No 207 of 30 December 2008 (GURI No 304 of 31 December 2008), converted into law, after amendment, by Law No 14 of 27 February 2009 (ordinary supplement to GURI No 49 of 28 February 2009) ('Law No 21/1992'), provides:

'1. Car and driver hire service shall be a service for specific users who file a special request with the garage, booking that service for a given duration and/or itinerary.

2. The vehicles must be parked in the garages ...

3. The registered office of the carrier and the garage must be located, exclusively, in the territory of the municipality which issued the authorisation.'

8 Under Article 7 of Law No 21/1992:

'1. Holders of a licence to operate a taxi service or an authorisation to operate a car and driver hire service, for the purposes of freely carrying on their own business, may:

...

(b) join either a workers' cooperative, such as those with collective property, or a service cooperative, operated in accordance with the current rules governing cooperation;

(c) join a consortium of artisan businesses or any other consortium provided for in law;

...

2. In the situations referred to in paragraph 1 above, the licence or authorisation may be transferred to the bodies referred to therein and the original holder may, in a situation involving withdrawal, forfeiture or exclusion by those bodies, resume possession of a licence or authorisation which has been transferred.

...'

9 Article 8 of that law provides:

'1. A licence to operate a taxi service or an authorisation to operate a car and driver hire service shall be issued by the municipal authorities, on the basis of a public procurement procedure, to individuals who own or lease the use of a vehicle ...; such persons may own or lease that vehicle individually or as members of an association.

2. Each licence or authorisation is issued in respect of one particular vehicle ... only. ... An individual may ... accumulate a number of authorisations for operating a car and driver hire service ...

3. In order to obtain and maintain an authorisation for operating a car and driver hire service, it is compulsory to have the use, on the basis of a valid legal title, of a registered office [or] a garage ... located in the territory of the municipality which issued the authorisation.'

10 Under Article 11(2) and (4) of Law 21/1992:

'2. Users shall be collected, or the service shall begin, in the territory of the municipality which issued the licence and the service may be provided to any destination, subject to the consent of the driver in the case of destinations beyond the municipal or district boundaries, except as provided for under Article 4(5).

...

4. Bookings for car and driver hire services shall take place at the garage. Each individual car and driver hire must begin and end at a garage located in the municipality in which the authorisation was issued, returning to that garage, although the collection of the user and the user's arrival at his destination may take place also in other municipalities.'

11 It can be seen from the documents before the Court that Article 14a(2) of Law No 11 of 4 February 2005, introduced by Law No 88 of 7 July 2009 laying down provisions for the fulfilment of the obligations resulting from Italy's membership of the European Communities (Community Law 2008) (ordinary supplement to GURI No 161 of 14 July 2009), provides that 'Italian legal rules or practices at national level which have a discriminatory effect with regard to the conditions and treatment to which non-Italian Community nationals who are domiciled in Italy are subject are not to be applied to Italian citizens'.

Lazio regional legislation

12 Article 5 of Lazio Regional Law No 58 of 26 October 1993 laying down measures relating to the provision of non-scheduled public transport and rules relating to the role of drivers of non-scheduled public transport services as referred to in Article 6 of Law No 21/1992 (Bollettino ufficiale della Regione Lazio No 31 of 10 November 1993), as amended by Article 58 of Lazio Regional Law No 27 of 28 December 2006 (ordinary supplement No 5 to Bollettino ufficiale della Regione Lazio No 36 of 30 December 2006) ('Regional Law No 58/1993'), provides:

'Car and driver hire service shall be a service for specific users who file a special request with the carrier's registered office, booking that service for a given duration and/or itinerary. Users shall be collected, or the service shall begin, in the territory of the municipality which issued the authorisation. The service may be provided to any destination. The vehicles must be parked in the garages.'

13 Paragraph 2 of Article 10 of Regional Law No 58/1993, which is entitled 'Obligations of holders of a licence to operate a taxi service or an authorisation to operate a car and driver hire service', provides:

'Except as provided for ..., users shall be collected and the service shall begin exclusively within the territory of the municipality which issued the licence or the authorisation and the service may be provided to any destination, subject to the consent of the driver in the case of destinations outside that municipality.'

14 Article 17 of Regional Law No 58/1993 sets out the conditions for entry in a provincial register of drivers. Article 17(1)(a) states that, in order to be entered in the register, it is necessary to be 'an Italian national or a national of one of the Member States of the European Economic Community'.

The disputes in the main proceedings and the questions referred for a preliminary ruling

15 By orders of 1 February 2011, the Comune di Grottaferrata (Municipality of Grottaferrata) decided on a 30-day suspension, with effect from 14 March 2011, of the authorisations to operate a car and driver hire service previously granted by that municipality to Mr Panarisi and Mr Vivani. The reason for that suspension was the discovery of an infringement of Articles 3 and 11(4) of Law No 21/1992 and of Articles 5 and 10 of Regional Law No 58/1993 in so far as, under those provisions, it is compulsory to use exclusively a garage situated in the territory of the municipality which issued the authorisation for the service in question and the service must begin and end at that garage. It was established, following investigations, that, for the vehicles assigned to the service covered by those authorisations, the garages used were not located within the territory of the Comune di Grottaferrata, but rather in the territory of the Municipality of Rome, where the registered offices of Airport Shuttle Express and Autonoleggio Piccola - to which the authorisations had been transferred by Mr Panarisi and Mr Vivani respectively - are located.

16 Airport Shuttle Express and Mr Panarisi have brought an action, as have Autonoleggio Piccola and Mr Vivani, before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio) ('the referring court') for annulment of the suspensory measures mentioned above, contesting their legality on the basis, inter alia, of the EU rules on transport, internal market, and competition.

17 The referring court observes that there are no specific rules in EU law concerning non-scheduled vehicle and driver services. Nevertheless, in the present cases, it is appropriate to refer to the EU legislation on passenger transport. In that regard, the EU law on the freedom of establishment and free competition is fully applicable to the transport sector. The referring court invokes, in particular, the liberalisation of transportation within the single market provided for in Regulation No 2454/92 and achieved in the bus operators sector by Regulation No 12/98. It also makes reference to Article 92 TFEU. As regards free competition, the referring court cites Articles 101 TFEU and 102 TFEU, read in conjunction with Articles 3 TEU and 4(3) TEU and with Articles 3 TFEU, 4 TFEU, 5 TFEU and 6 TFEU.

18 According to the referring court, the Italian national and regional legislation at issue appears to be inconsistent with Article 49 TFEU. That court is also of the view that such legislation appears to lay down measures which impede effective competition between operators in the transportation market.

19 In those circumstances, the Tribunale amministrativo regionale per il Lazio decided to stay the proceedings and to refer the following questions - which are worded identically in Case C-162/12 and Case C-163/12 - to the Court of Justice for a preliminary ruling:

'1. Do Article 49 TFEU, [Articles 3 TEU, 4 TEU, 5 TEU and 6 TEU and Articles 101 TFEU] and [Article] 102 TFEU and Regulation ... No 2454/92 and Regulation... No 12/98 preclude the application of Articles 3(3) and 11 of Law [No 21/1992] in so far as the latter provisions respectively provide that "... [t]he registered office of the carrier and the garage must be located, exclusively, in the territory of the municipality which issued the authorisation" and that "... [b]ookings for car and driver hire services shall take place at the garage[;] [e]ach individual car and driver hire must begin and end at a garage located in the municipality in which the authorisation was issued, returning to that garage, although the collection of the user and the user's arrival at his destination may take place also in other municipalities. ..."?

2. Do Article 49 TFEU, [Articles 3 TEU, 4 TEU, 5 TEU and 6 TEU and Articles 101 TFEU] and [Article] 102 TFEU and Regulation ... No 2454/92 and Regulation ... No 12/98 preclude the application of Articles 5 and 10 of [Regional Law No 58/1993], in so far as the latter provisions respectively provide that "... [u]sers shall be collected, or the service shall begin, in the territory of the municipality which issued the authorisation" and that "... [u]sers shall be collected and the service shall begin exclusively within the territory of the municipality which issued the licence or authorisation and the service may be provided to any destination, subject to the consent of the driver in the case of destinations beyond the municipal boundaries. ..."?'

20 By order of the President of the Court of 2 May 2012, Case C-162/12 and Case C-163/12 were joined for the purposes of the written and oral procedure, and of the judgment.

Requests submitted after the close of the oral procedure

21 By document lodged at the Registry of the Court on 31 October 2013, supplemented by an addendum lodged on 21 November 2013, Airport Shuttle Express, Mr Panarisi, Autonoleggio Piccola, Mr Vivani and Federnoleggio asked for the oral procedure to be reopened. According to those parties, in the light of the Advocate General's Opinion, it is necessary to reopen that procedure in order to provide some missing factual information in connection with the question of whether the requests for a preliminary ruling are admissible and to allow discussion of the possible impact which the procedure used by the Italian municipalities for granting authorisations to operate a car and driver hire service may have on that question.

22 In the alternative, those interested persons ask the Court to send the referring court a request for clarification pursuant to Article 101 of the Rules of Procedure of the Court of Justice.

23 Pursuant to Article 83 of the Rules of Procedure, the Court may, after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.

24 However, it should be borne in mind that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court, require the Advocate General's involvement. In carrying out that task, the Advocate General may, where appropriate, analyse a request for a preliminary ruling by placing it within a context which is broader than that strictly defined by the referring court or by the parties to the main proceedings. Since the Court is not bound either by the Advocate General's Opinion or by the reasoning on which it is based, it is not absolutely necessary to reopen the oral procedure, under Article 83 of the Rules of Procedure, whenever the Advocate General raises a point of law which was not the subject of debate between the parties (see, inter alia, Case C-361/06 Feinchemie Schwebda and Bayer CropScience [2008] ECR I-3865, paragraph 34; Case C-535/11 Novartis Pharma [2013] ECR, paragraph 31; and Case C-361/12 Carratù [2013] ECR, paragraph 19).

25 Accordingly, there is no need to grant the request for the reopening of the oral procedure.

26 As regards the Court's power under Article 101 of the Rules of Procedure to send the referring court a request for clarification, it emerges from settled case-law - now reflected in Article 94(b) and (c) of those Rules - that, as the order for reference is the basis of the procedure for referring questions to the Court of Justice for a preliminary ruling, it is essential for the national court to explain, in that order for reference, the factual and legislative context of the dispute before it and to give at the very least some explanation of the reasons for the choice of the provisions of EU law which it requires to be interpreted and of the link that it establishes between those provisions and the national legislation applicable to the dispute (see, to that effect, inter alia, the order in Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraphs 23 and 24; Case C-295/05 Asemfo [2007] ECR I-2999, paragraph 33; and Case C-79/12 Mora IPR [2013] ECR, paragraph 37).

27 In those circumstances, the Court does not consider it appropriate, in the context of the present cases, to send the referring court a request for clarification.

Consideration of the questions referred

28 By its questions, the referring court asks, in essence, whether various provisions of EU law preclude national and regional legislation laying down conditions for the authorisation and operation of car and driver hire services.

29 In view of the wording of the questions referred, it should be borne in mind from the outset that in the context of Article 267 TFEU the Court has no jurisdiction to rule either on the interpretation of provisions of national laws or regulations or on their conformity with EU law (see, inter alia, Case C-107/98 Teckal [1999] ECR I-8121, paragraph 33, and Case C-237/04 Enirisorse [2006] ECR I-2843, paragraph 24 and the case-law cited).

30 That being so, it is settled case-law that, if questions have been improperly formulated or if they go beyond the scope of the powers conferred on the Court by Article 267 TFEU, the Court is free to extract from all the information provided by the referring court and, in particular, from the statement of grounds in the order for reference the elements of EU law which, having regard to the subject-matter of the dispute, require interpretation (see, inter alia, Case C-384/08 Attanasio Group [2010] ECR I-2055, paragraph 18 and the case-law cited). To that end, the Court may have to reformulate the questions referred to it (see, inter alia,Attanasio Group, paragraph 19; Case C-243/09 Fuß [2010] ECR I-9849, paragraph 39 and the case-law cited; and Case C-249/11 Byankov [2012] ECR, paragraph 57 and the case-law cited).

31 Applying that case-law, it may be accepted that, although the wording of the questions referred suggests that the national court is seeking the direct application of EU law to the disputes before it, that court is in fact seeking an interpretation of EU law with regard to the matters of fact and law applicable in the main proceedings.

32 Next, it should be noted that, as the Advocate General observed in point 20 of her Opinion, Regulation No 12/98, referred to in those questions, does not apply to the activity at issue in the main proceedings since, under Article 2(4) of Regulation No 12/98, that regulation applies only to motor vehicles which, by virtue of their construction and equipment, are suitable for carrying more than nine persons - including the driver - and are intended for that purpose. Moreover, it can be seen from paragraph 3 above that Regulation No 2454/92 has been annulled by the Court.

33 Also, in addition to Articles 49 TFEU, 101 TFEU and 102 TFEU, the questions referred mention Articles '3 TEU, 4 TEU, 5 TEU and 6 TEU'. Despite the vagueness of the orders for reference as regards the competition rules set out in Articles 101 TFEU and 102 TFEU, it is possible to infer from this (see, by analogy, in particular, Byankov, paragraph 58 and the case-law cited) that the referring court may in fact be seeking an interpretation, with regard to the facts of the cases before it, of those provisions read in conjunction with Article 4(3) TEU and Article 106 TFEU respectively.

34 Furthermore, as the Commission has rightly observed, the questions referred concern obligations that flow from the legislation at issue in the main proceedings, but which go beyond the obligations that gave rise to those disputes because of the applicants' alleged failure to comply with them. As can be seen from paragraph 15 above, the disputes before the referring court concern only failure to comply with the obligation to use exclusively a garage located in the territory of the municipality which issued the authorisation to operate a car and driver hire service and the obligation to have each individual service begin and end at that garage.

35 The questions referred, as worded, also appear to concern: (i) the obligation for the registered office of the carrier to be located, exclusively, in the territory of the municipality which issued the authorisation; (ii) the obligation for bookings for car and driver hire services to take place at the garage used for those services; and (iii) the obligation for users to be collected exclusively within the territory of the municipality which issued the authorisation. So far as those three obligations are concerned, the questions referred are hypothetical.

36 In those circumstances, the questions referred must be understood as seeking, in essence, to ascertain whether Article 49 TFEU or the EU competition rules are to be interpreted as precluding the application of national and regional legislation, such as that at issue in the main proceedings, to the extent that such legislation provides that: (i) the garage used for car and driver hire services must be located exclusively in the territory of the municipality which issued the authorisation to operate such services; (ii) the vehicles used in the course of those services must be parked in that garage; and (iii) each individual service must begin and end at that same garage.

37 As regards, first, the EU competition rules, although it is true that, in themselves, Articles 101 TFEU and 102 TFEU are concerned solely with the conduct of undertakings and not with laws or regulations emanating from Member States, those provisions, read in conjunction with Article 4(3) TEU, which lays down a duty to cooperate, none the less require Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see Case 13/77 GB-Inno-BM [1977] ECR I-2115, paragraph 31; Case C-198/01 CIF [2003] ECR I-8055, paragraph 45 and the case-law cited; and Case C-338/09 Yellow Cab Verkehrsbetrieb [2010] ECR I-13927, paragraph 25).

38 However, the Court has consistently held that the need to provide an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legal context of its questions or, at the very least, to explain the factual circumstances on which those questions are based. Those requirements are of particular importance in the field of competition, which is characterised by complex factual and legal situations (see, inter alia, Attanasio Group, paragraph 32 and the case-law cited, and Joined Cases C-357/10 to C-359/10 Duomo Gpa and Others [2012] ECR, paragraph 22).

39 In the present cases, however, the orders for reference do not provide the Court with the factual and legal information necessary for it to be able to determine the circumstances in which legislation such as that at issue in the main proceedings might fall within the scope of Articles 101 TFEU and 102 TFEU, read in conjunction with Article 4(3) TEU and Article 106 TFEU respectively. In particular, those orders do not provide any explanation of the connection which the referring court sees between those provisions and the disputes in the main proceedings or their subject-matter.

40 In such circumstances, the questions referred must be declared inadmissible to the extent that they seek an interpretation of those provisions (see, by analogy, inter alia, Duomo Gpa and Others, paragraph 24).

41 As regards, secondly, Article 49 TFEU, it is common ground that all elements of the disputes before the referring court are confined within a single Member State. In those circumstances, it is necessary to determine whether the Court has jurisdiction in the present cases to give a ruling on that provision (see, by analogy, inter alia, Case C-380/05 Centro Europa 7 [2008] ECR I-349, paragraph 64; Case C-245/09 Omalet [2010] ECR I-13771, paragraphs 9 and 10; and Duomo Gpa and Others, paragraph 25).

42 Legislation such as that at issue in the main proceedings, which, according to its wording, applies without distinction to operators established in the Italian Republic and to operators established in other Member States, is generally likely to fall within the scope of the provisions on the fundamental freedoms established by the FEU Treaty only to the extent to which it applies to situations related to intra-Community trade (see, to that effect, inter alia, Joined Cases C-321/94 to C-324/94 Pistre and Others [1997] ECR I-2343, paragraph 45; Case C-448/98 Guimont [2000] ECR I-10663, paragraph 21; and Duomo Gpa and Others, paragraph 26 and the case-law cited).

43 As regards, more specifically, Article 49 TFEU, the Court has consistently held that that provision cannot be applied to activities which have no factor linking them with any of the situations governed by EU law and which are confined in all relevant respects within a single Member State (see, to that effect, inter alia, Case 20/87 Gauchard [1987] ECR 4879, paragraph 12; Case 204/87 Bekaert [1988] ECR 2029, paragraph 12; Case C-212/06 Government of the French Community and Walloon Government [2008] ECR I-1683, paragraph 33; and Case C-84/11 Susisalo and Others [2012] ECR, paragraph 18 and the case-law cited).

44 It is true that, according to the line of authority devolving from Guimont, the Court's answer to questions concerning fundamental freedoms of the European Union may, even in a purely internal situation, nevertheless be of use to the referring court, especially if its national law were to require it to allow a national to enjoy the same rights as those which a national of another Member State would derive from EU law in the same situation (see, inter alia, Case C-393/08 Sbarigia [2010] ECR I-6337, paragraph 23, and Susisalo and Others, paragraph 20 and the case-law cited).

45 In the present context, the situation contemplated in the case-law cited in paragraph 44 above concerns the rights which a national of a Member State other than the Italian Republic could derive from EU law, were that person to be in the same situation as the applicants in the cases before the referring court.

46 However, it is clear from the documents before the Court that the applicants in the main proceedings are already established in Italy and are authorised to operate a car and driver hire service in the Comune di Grottaferrata. Their authorisations have been temporarily suspended because of failure to observe certain related conditions. The applicants are not seeking to establish themselves elsewhere, whether in Italy or in another Member State. By their actions, they are not calling in question the general system of rules governing car and driver hire or the way in which authorisations are granted. Their sole aim is to have the court strike out some of the conditions attached to the authorisations that they already hold.

47 Thus, a national of a Member State other than the Italian Republic in the same situation as the applicants in the main proceedings would, in theory, already be pursuing an economic activity on a stable and continuous basis from an establishment located in Italy.

48 The cases before the referring court are therefore similar to the case that gave rise to the judgment in Sbarigia, which concerned a decision as to whether a particular pharmacy should be exempted from the obligation to observe normal opening hours and in which there was accordingly nothing to indicate how such a decision might affect economic operators coming from other Member States (see Joined Cases C-159/12 to C-161/12 Venturini and Others [2013] ECR, paragraph 27).

49 In those circumstances, the interpretation of Article 49 TFEU on the freedom of establishment has no bearing on the disputes pending before the referring court.

50 In the light of the foregoing, the Court does not have jurisdiction in the present context to interpret Article 49 TFEU with regard to the facts of the cases before the referring court.

51 In the light of all of the foregoing, the Court does not have jurisdiction to answer the present requests from the Tribunale amministrativo regionale per il Lazio for a preliminary ruling, to the extent that those requests concern the interpretation of Article 49 TFEU. Those requests must be declared inadmissible to the extent that they concern the interpretation of other provisions of EU law.

Costs

52 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

The Court of Justice of the European Union does not have jurisdiction to answer the requests from the Tribunale amministrativo regionale per il Lazio (Italy) for a preliminary ruling, made by decisions of 19 October 2011 and 1 December 2011 in Joined Cases C-162/12 and C-163/12, to the extent that those requests concern the interpretation of Article 49 TFEU. Those requests are inadmissible to the extent that they concern the interpretation of other provisions of EU law.