ECJ C-400/08 Commission vs Spain (24-3-2011)

In this case, the Commission of the European Communities claimed that  Spain had failed to fulfill its obligations under Article 43 EC, by imposing restrictions on the establishment of shopping centres in Catalonia.

The action brought by the Commission comprised, in essence, three complaints relating to the incompatibility with Article 43 EC of: (i) the restrictions on the location and size of large retail establishments; (ii) the conditions for obtaining the specific retail licence required to set up such establishments; and (iii) certain aspects of the procedure for the grant of that licence.

The first complaint, which related to the restrictions on the location and size of large retail establishments, concerned a prohibition on setting up such establishments outside consolidated urban areas of a limited number of municipalities and the sales area limitations for each district and municipality . As regards the sales area limitations for each district and municipality, the Commission argued that the limitation was particularly severe in the case of hypermarkets.

The second complaint, which related to the conditions for obtaining a specific retail licence, was composed of six parts, respectively concerning: (i) the need to obtain a specific retail licence before opening large retail establishments; (ii) the taking into account, under the licensing procedure, of the existence of retail facilities in the area concerned and the effects of setting up a new establishment on the retail structure of that area; (iii) the requirement, under the licensing procedure, of a market share report which was binding if unfavourable and which must be unfavourable if the market share exceeds a certain value; (iv) the required consultation with the Competition Court; (v) the obligation to obtain the opinion of the Retail Facilities Committee, whose members include potential competitors of the applicant; and (vi) the lack of a clear definition of the criteria applicable.

Lastly, the third complaint, which related to certain aspects of the procedure for the issue of retail licences, was composed of three parts, respectively concerning: (i) a ‘negative silence’ rule ; (ii) the charging of fees which were unrelated to;  and (iii) the excessive length of the procedure

For the text of the judgement click here.