Italië moet vestigingsbeleid voor benzinestations aanpassen (en)

The European Commission i has decided to bring Italy before the Court of Justice because of national restrictions on the establishment of service stations. The Commission considers that the Italian provisions are contrary to Article 43 of the EC Treaty, which provides for freedom of establishment within the European Union. The rules in question, which are laid down at both national and regional level with regard to the retail distribution of fuel, impose a number of restrictions which make it impossible or in any case extremely difficult for new competitors from other EU Member States to enter the Italian market.

The Italian rules on opening service stations are set by a national legislative framework (legislative decree No 32 of 11 February 1998 as amended by legislative decree No 346 of 8 September 1999, law No 496 of 28 December 1999 converting decree-law No 383 of 29 October 1999, law No 57 of 5 March 2001 on "the opening and regulation of markets" and the national Plan containing guidelines on the modernisation of the fuel distribution system approved by decree of 31 October 2001) and are implemented and supplemented by a number of provisions adopted by the Italian regions.

Following the reasoned opinion of June 2007, the national authorities promised legislative initiatives and other measures in response to a number of objections raised by the Commission. But no legislation has since been adopted. The Commission has therefore decided to move on to the next stage in the proceedings, while granting Italy a deferral period of 4 months before implementing its decision to bring the matter before the Court of Justice, in order to check whether a reform of this sector can be relaunched and will materialise soon.

The types of restriction imposed by the various rules in force and called into question by the Commission comprise:

(a) Making the opening of new service stations subject to compliance with market planning conditions

In some regions local planning makes the opening of new installations subject to the closure of a certain number of existing ones, or to compliance with the regulatory plan. The Court of Justice has already deemed requirements linked to compliance with regional planning documents to be incompatible with the exercise of a basic freedom (see Case C-439/99 Commission v Italy [2002] ECR I-305, paragraph 33).

(b) Structural requirements imposed on new service stations in terms of minimum area and supplementary commercial activities ("non-oil")

The Commission stresses the excessively restrictive scope of the conditions requiring all new service stations to have a minimum area (varying from 200 m² to 4 000 m²) and commercial activities supplementary to fuel distribution ("non-oil activities").

(c) Minimum distances

Imposing minimum distances between service stations (varying from 200 m to 10/15 km) directly affects access to the fuel distribution market by new operators and particularly by large distributors, including operators from other Member States, which - based on their model of service stations located close to shopping centres -would like to develop a similar distribution strategy in Italy. The objectives of ensuring road safety, safeguarding public health and protecting the environment should be pursued by less restrictive means and in particular by rules specific to those purposes.

(d) Constraints on opening hours

The Commission also contests the prior closure condition for 7 000 installations in order to enable derogations from the opening hours (in the form of extending the maximum hours by up to 50% of the minimum hours), because there is no direct link with the objective of ensuring the installations' safety.

(e) Self-certification

Under Italian law, an application for authorisation to open a service station must contain a self-certification accompanied by a report sworn by a professional registered in Italy. The requirement to use a professional registered in Italy entails additional costs by preventing firms from other Member States wishing to set up service stations in Italy from using their habitual service providers.

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It should be pointed out that Italy's competition watchdog Autorità italiana Garante per la Concorrenza e il Mercato (AGCM) has already expressed several criticisms of the Italian fuel distribution rules, and particularly of certain restrictions called into question by the Commission during the current proceedings. The AGCM's opinions of 4 November 2004 and 18 January 2007 were echoed by another opinion of 20 December 2007 along the same lines.

The latest information on infringement proceedings concerning Member States is available at:

http://ec.europa.eu/community_law/index_en.htm