Joined Cases C‑360/15 and C‑31/16
College van Burgemeester en Wethouders van de gemeente Amersfoort
v
X BV
and
Visser Vastgoed Beleggingen BV
v
Raad van de gemeente Appingedam
(Requests for a preliminary ruling from the Hoge Raad der Nederlanden and the Raad van State)
(Reference for a preliminary ruling — Services in the internal market — Directive 2006/123/EC — Scope — Article 2(2)(c) — Exclusion of electronic communications services and networks — Article 4(1) — Concept of ‘service’ — Retail trade in goods — Chapter III — Freedom of establishment of service providers — Applicability in purely internal situations — Article 15 — Requirements to be evaluated — Territorial restriction — Zoning plan prohibiting the activity of retail trade in goods other than bulky goods in geographical zones situated outside the city centre — Protection of the urban environment — Authorisation of electronic communications services and networks — Directive 2002/20/EC — Financial payments attached to rights to install facilities for a public electronic communications network)
Summary — Judgment of the Court (Grand Chamber), 30 January 2018
Freedom of establishment—Freedom to provide services—Services in the internal market—Directive 2006/123—Scope—Electronic communications services and networks—Not included—Imposition of fees/charges for the payment of which liability is connected with the rights of authorised undertakings to install cables for a public electronic communications network—Precluded
(European Parliament and Council Directive 2006/123, Art. 2(2)(c))
Freedom of establishment—Freedom to provide services—Services in the internal market—Directive 2006/123—Restrictions—Meaning—Retail trade in goods—Precluded
(European Parliament and Council Directive 2006/123, art. 4, point 1)
Freedom of establishment—Freedom to provide services—Services in the internal market—Directive 2006/123—Freedom of establishment of service providers—Applicability in purely internal situations
(European Parliament and Council Directive 2006/123, Recital 2 and 5 and Arts 2(1), 9(1), 14 and 15(1))
Freedom of establishment—Freedom to provide services—Services in the internal market—Directive 2006/123—Authorisation system—Meaning—Municipal zoning plan prohibiting the activity of retail trade in certain goods in specified geographical zones—Precluded
(European Parliament and Council Directive 2006/123, Art. 4, point 6)
Freedom of establishment—Freedom to provide services—Services in the internal market—Directive 2006/123—Requirements to be evaluated—Rules in a zoning plan prohibiting the activity of retail trade in certain goods in specified geographical zones—Lawfulness—Condition—Compliance with conditions of non-discrimination, necessity and proportionality—To be determined by the national court
(European Parliament and Council Directive 2006/123, Art. 15(1) to (3))
Article 2 (2) (c) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market must be interpreted as meaning that that directive is not applicable to fees/charges for the payment of which liability is connected with the rights of undertakings authorised to provide electronic communications networks and services to install cables for a public electronic communications network.
(see para. 82, operative part 1)
Article 4 (1) of Directive 2006/123 must be interpreted as meaning that the activity of retail trade in goods constitutes a ‘service’ for the purposes of that directive.
(see para. 97, operative part 2)
The provisions of Chapter III of Directive 2006/123, on freedom of establishment of providers, must be interpreted as meaning that they also apply to a situation where all the relevant elements are confined to a single Member State.
In that regard, it must, first, be noted that the wording of those provisions does not lay down any condition as to the existence of a foreign element. In particular, Article 9 (1), Article 14 and Article 15 (1) of Directive 2006/123, which relate, respectively, to authorisation schemes, prohibited requirements and requirements to be evaluated, make no reference to any cross-border aspect. Further, as regards the context of Chapter III of Directive 2006/123, Article 2(1) of that directive provides, in general terms, without making any distinction between service activities containing a foreign aspect and service activities that have no such aspect, that that directive is to apply to ‘services supplied by providers established in a Member State’.
Last, the interpretation that the provisions of Chapter III of Directive 2006/123 are applicable not only to the provider who wishes to become established in another Member State but also to the provider who wishes to become established in his own Member State is consistent with the objectives pursued by that directive. In that regard, it must be observed that Directive 2006/123, as is apparent from Article 1 thereof, read together with recitals 2 and 5, lays down general provisions that are intended to remove restrictions on the freedom of establishment for service providers in Member States and on the free movement of services between the Member States, in order to contribute to the completion of a free and competitive internal market (judgment of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 44). If, however, the internal market in services is to be fully achieved, that requires, above all, the elimination of obstacles which are encountered by providers in becoming established in the Member States, whether in their own Member State or in another Member State, and which are liable to affect adversely their ability to supply services to recipients located throughout the European Union.
(see paras 99, 100, 103-105, 110, operative part 3)
See the text of the judgment.
(see paras 113-115)
Article 15 (1) of Directive 2006/123 must be interpreted as not precluding rules contained in a municipal zoning plan from prohibiting retail trade activity in goods other than bulky goods in geographical zones situated outside the city centre of that municipality, provided that all the conditions laid down in Article 15(3) of that directive are satisfied, which it is for the referring court to determine.
In that regard, it must be stated that Article 15 of the directive has direct effect since, in the second sentence of Article 15(1), it imposes on the Member States an unconditional and sufficiently precise obligation to adapt their laws, regulations or administrative provisions so as to make them compatible with the conditions laid down in Article 15(3). In this instance, as stated by the Advocate General in point 143 of his Opinion, by prohibiting retail trade activity in goods that are not bulky goods in a geographical zone situated outside the city centre of the municipality of Appingedam, the regulation at issue in the main proceedings contains one of the requirements listed in Article 15 (2) of Directive 2006/123, since it makes access to a service activity or the exercise of a service activity subject to a territorial restriction, within the meaning of Article 15(2) (a) of that directive. As follows from paragraph 129 of the present judgment, Directive 2006/123 does not preclude access to a service activity or the exercise of a service activity being made subject to compliance with such a territorial restriction, provided that the conditions of non-discrimination, necessity and proportionality laid down in Article 15(3) of that directive are satisfied.
(see paras 130-132, 136, operative part 4)