Freedom of Establishment Versus Retail Planning: The European Case

Studies on retail planning in European Union (EU) Member States tend to be nationally oriented and, at best, compare national retail planning systems. They also appear to be based on an implicit assumption that retail planning should not be designed to fit the Single European Market (SEM). This paper analyses a series of judgments by the European Court of Justice and activities undertaken by the European Commission and concludes that this assumption is misguided and incorrect. The bottom line is that retail planning can interfere with freedom of establishment—one of the fundamental EU freedoms laid down in the Treaty of Rome—by limiting the realization of new shopping outlets and by redirecting retail to preselected locations. Such restrictions may be allowable if the Member State in question is able to demonstrate that they are non-discriminatory, appropriate and proportional on the basis of the interpretations of these fundamental principles in European Law. There is a European Retail Action Plan which aims to organize national retail planning systems in such a way that they are compatible with the principles of the SEM.