C-204/87
ECLI:EU:C:1988:148
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CRIMINAL PROCEEDINGS AGAINST BEKAERT
O P I N I O N O F M R A D V O C A T E GENERAL DA CRUZ VILAÇA delivered o n 9 M a r c h 1988 *
Mr President, competition and, therefore, freedom of Members of the Court, establishment.
1. The question referred to the Court of 4. The question referred to the Court for a Justice by the cour d'appel, Rennes, on preliminary ruling in both cases fails to which the Spanish Government and the specify the rules of Community law which Commission have just expressed their views, are considered applicable and of which an is identical to that submitted by the tribunal interpretation is sought; but the grounds set de police, Falaise (in Case 20/87 Ministère out in the order for reference, which are the public v Gauchard [1987] ECR 4879), on same in both cases, enable the aims pursued which I delivered my Opinion on 27 by it to be identified. October 1987 and to which an answer was given in the judgment of the Court of 8 December 1987.
5. Since the issues in the two cases are identical, both the French Government and the Commission refer in their written obser- 2. As in that case, the issue here is the inter- vations to those which they submitted in the pretation of Community law in connection Gauchard case. with the application of French legislation on town-planning rules applicable to commercial premises, and in particular Articles 28 to 36 of Law 73-1193 of 27 December 1973, known as the 'Loi Royer'. 6. In the opinion which I delivered in the latter case, I analysed the problem from the point of view of the Community rules concerning the right of establishment and free movement of goods and the compe- 3. In this case too the case relates to the tition rules laid down in the Treaty. requirement of prior authorization for the operation of commercial premises exceeding a certain area and here too the person accused of infringing the Loi Royer claimed before the national court that the French legislation was incompatible with Com- 7. In the judgment which it then delivered, munity law, having regard in particular to the Court, taking the view that the national the principles of freedom of trade and of court sought to determine whether national
* Translated from the Portuguese.
OPINION OF MR D A CRUZ VILAÇA —CASE 204/87
rules such as the French law on the town- 11. As far as Directives 68/363 and 68/364 planning rules applicable to commercial are concerned, two aspects are deserving of premises were incompatible with the attention in this case: principle of freedom of establishment, refor- mulated the question submitted in such a way that it called for interpretation of the Community provisions concerning freedom of establishment, specifically Article 52 of 1. There is no information before the Court the EEC Treaty and Directives 68/363 and to indicate whether the appellant before 68/364 of the Council of 15 October 1968 the national court was ever in a situation implementing Article 52 in respect of acti- such as to render those directives vities of self-employed persons in retail applicable (for example the pursuit of trade (Official Journal, English Special activities in another Member State as a Edition 1968 (II), pp. 496 and 501). self-employed person in retail trade); '
8. However, in the present case — as in the Gauchard case — it does not appear from the documents before the Court that the 2. Even if that had been the case, the circumstances have any point of contact proceedings before the national court are with Community law as far as freedom of entirely unrelated to any circumstances establishment is concerned: the appellant in which might render the provisions of the main proceedings was born and resides those directives (for example, Article 4 of in France, where he manages a public Directive 68/364) applicable. limited company which operates a commercial establishment in France as concessionnaire for a French make of cars, and all that is involved is an application containing false statements which were 12. In a word, the present proceedings, as submitted with a view to enlarging that presented to the Court, do not involve any establishment. situation detrimental to freedom of estab- lishment within the meaning of Article 52 of the Treaty and of the directives adopted for 9. The situation is therefore wholly internal the implementation of that article in the to a Member State. field of retail trade.
10. As the Court made clear in paragraph 11 of its judgment in Gauchard 'Article 52 is 13. Having regard to the specific circum- intended to ensure that all nationals of stances to which I have just referred, and to Member States who establish themselves in the clear similarities between this case and another Member State, even if that estab- the Gauchard case, I propose that you lishment is only secondary, for the purpose should give to the cour d'appel, Rennes of pursuing activities there as a self- mutatis mutandis an answer similar to that employed person receive the same treatment which you gave to the tribunal de police, as nationals of that State and it prohibits, as Falaise, in Gauchard. a restriction on freedom of establishment, any discrimination on grounds of 1 — See judgment of 7 February 1979 in Case 115/78 Knoori nationality'. [1979] ECR 399.
CRIMINAL PROCEEDINGS AGAINST BEKAERT
14. The answer which I propose is as follows:
'The Community rules on the right of establishment, in particular Article 52 of the Treaty and Council Directives 68/363 and 68/364 implementing that article in respect of activities of self-employed persons in retail trade, do not apply to situ- ations which are purely internal to a Member State and where no obstacle to the exercise of that right of establishment is at issue.'