Opinion of Advocate General Szpunar delivered on 18 May 2017.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Date: 18 May 2017

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 18 May 2017(1)

Joined Cases C‑360/15 and C‑31/16

College van Burgemeester en Wethouders van de gemeente Amersfoort

v

X BV

(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands))

(Directive 2006/123/EC – Scope – Article 2(2)(c) – Article 2(3) –Activities related to the provision of electronic networks – Directive 2002/20 – Article 13)

and

Visser Vastgoed Beleggingen BV

v

Raad van de gemeente Appingedam

(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))

(Directive 2006/123/EC – Establishment of Service Providers – Scope – Recital 9 – Article 4(1) – Concept of ‘service’ – Retail – Municipal zoning plan – Article 15(2)(a) – Territorial restriction – Article 15(3) – Protection of the urban environment)

Table of contents

I. Introduction

II. Legal framework

A. EU law

1. Directive 2006/123 on services in the internal market

2. EU law on administrative fees in relation to the installation of electronic communications networks

B. Netherlands law

1. Selected provisions of the Netherlands telecommunications code

2. ‘Leges’ in the Commune of Amersfoort

3. Provisions governing zoning maps in the Netherlands and the Commune of Appingedam

III. The actions in the main proceedings and the questions referred for a preliminary ruling

A. C-360/15, X

B. C-31/16, Visser

IV. The procedure before the Court

V. Analysis

A. Case C-360/15, X

1. On the scope of Directive 2006/123 (Questions 1 to 3)

(a) Article 2 of Directive 2006/123 (Question 1)

1) On Article 2(2)(c) of Directive 2006/123

2) On Article 2(3) of Directive 2006/123

(b) On recital 9 of Directive 2006/123 (Question 3)

(c) On purely internal situations (Question 2)

2. Questions 4 and 5

B. Case C31/16, Visser

1. On Article 4(1) of Directive 2006/123 (Question 1)

(a) Self-employed economic activity… provided for remuneration

(b) … as referred to in Article 57 TFEU

(c) Restrictive interpretation because of primary law?

1) Freedom of establishment

2) Free movement of goods

i) Searching for a centre of gravity

ii) Applying simultaneously

iii) Applying successively

3) Case Rina Services and Others

(d) Further considerations

(e) Conclusion

2. On purely internal situations (Question 4)

3. On possible cross-border elements (Question 3)

4. Zoning plan under Directive 2006/123 (Questions 2 and 5)

(a) On authorisations

(b) On requirements

(c) On recital 9 of Directive 2006/123

(d) On Article 14(5) of Directive 2006/123

(e) On Article 15 of Directive 2006/123

5. On Articles 34 and 49 TFEU (Question 6)

VI. Conclusion

I. Introduction

1. The internal market with its fundamental freedoms not only constitutes the historical legal cornerstone of the Treaties and their central organisational principle, but has also, since the outset of the integration process, been characterised by its dynamism. It is one of the stated aims of the Union (2) and stands prominently in the FEU Treaty in Title I of Part Three. Legally defined since the Single European Act as ‘an area in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’, (3) it aims to provide for a free flow of products and factors of production within the Union, against the background of the economic concept of comparative advantage. (4)

2. While I would not want to go so far as asserting that the internal market is a ‘living instrument’, (5) it can nevertheless be stated that, even more than most other policy areas of the Union, the law of the internal market constitutes a moving target. It is situated between two tectonic plates: on the one hand, the market freedoms, and, on the other, the Member States’ desire to regulate interests of a non-economic kind, those interests being such as to differ from national polity to national polity. The founding fathers of the Treaties were not blind: by opting for a horizontal policy area which cross-cuts and has implications for virtually any other (national) policy area, (6) this dynamism with its corresponding disruptive elements is part of the internal market’s DNA.

3. The Court has, over the years, kept abreast of this dynamism and has done so in different ways: at times it has fuelled it, (7) at other times it has moderated it. (8) But it always interpreted the Treaty provisions in a way which reflected the economic and social reality of the day (of a judgment). (9)

4. Traditionally, the bulk of the Court’s case-law has occurred in the context of free movement of goods and it is here that most concepts have their origin. Examples include many findings referred to already above, such as the finding, in principle, (10) that the freedoms are directed at the Member States, and that they do not apply in purely internal situations. (11) When assessing national measures which potentially violate more than one Treaty freedom, a tendency can be found to deal with such cases under the heading of ‘goods’. Establishment and services for a long time were overshadowed by this case-law. Yet, they gained ground over the years, leading, too, to a substantive body of case-law, be it in the case of direct application of these freedoms in the context of preliminary references or through infringement procedures against the Member States concerned.

5. The EU legislature considered that such a case-by-case approach was not enough to genuinely remove barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services between Member States and to guarantee recipients and providers the legal certainty necessary for the exercise in practice of these two fundamental freedoms of the FEU Treaty. (12) Accordingly, Directive 2006/123/EC (13) was adopted, following a lengthy process which entailed substantive changes to the initial proposal. (14)

6. This directive, which had to be transposed by Member States into national law by the end of 2009, (15) has not, as yet, generated an enormous amount of case-law before the Court.(16)

7. The present two requests for a preliminary ruling from the two highest Netherlands courts (in their respective domains), the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) and the Raad van State (Council of State, Netherlands), raise a number of fundamental questions on Directive 2006/123.

8. As will be seen in detail in the analysis, my main contention in both cases is that Directive 2006/123 should be interpreted in line with its purported objective and against the background of the accomplishment of the internal market, while taking into account legal and economic reality in the twenty-first century. In doing so, the Court should recognise that the service sector is evolving and that it constitutes an area with a large economic potential. The Court should not be afraid to interpret Directive 2006/123 in the way it has interpreted provisions of the internal market in the past: mindful of the telos, in light of present-day circumstances, and with due respect to Member States’ desire to (continue to) regulate activities of a non‑commercial nature.

II. Legal framework

A. EU law

1. Directive 2006/123 on services in the internal market

9. Recitals 9 and 33 of Directive 2006/123 read:

‘(9) This Directive applies only to requirements which affect the access to, or the exercise of, a service activity. Therefore, it does not apply to requirements, such as road traffic rules, rules concerning the development or use of land, town and country planning, building standards as well as administrative penalties imposed for non-compliance with such rules which do not specifically regulate or specifically affect the service activity but have to be respected by providers in the course of carrying out their economic activity in the same way as by individuals acting in their private capacity.

...

(33) The services covered by this Directive concern a wide variety of ever-changing activities .... The services covered are also services provided both to businesses and to consumers, such as legal or fiscal advice ...; distributive trades; the organisation of trade fairs ...; Those activities may involve services requiring the proximity of provider and recipient, services requiring travel by the recipient or the provider and services which may be provided at a distance, including via the Internet.’

10. Article 2 of Directive 2006/123 is headed ‘Scope’ and worded as follows:

‘1. This Directive shall apply to services supplied by providers established in a Member State.

2. This Directive shall not apply to the following activities:

...

(c) electronic communications services and networks, and associated facilities and services, with respect to matters covered by Directives 2002/19/EC, (17) 2002/20/EC, (18) 2002/21/EC, (19) 2002/22/EC (20) and 2002/58/EC;

...

3. This Directive shall not apply to the field of taxation.’

11. According to Article 3(3) of Directive 2006/123:

‘Member States shall apply the provisions of this Directive in compliance with the rules of the Treaty on the right of establishment and the free movement of services.’

12. Article 4 of Directive 2006/123 is headed ‘Definitions’ and contains the following provisions:

‘For the purposes of this Directive, the following definitions shall apply:

1) “service” means any self-employed economic activity, normally provided for remuneration, as referred to in Article 50 of the Treaty;

2) “provider” means any natural person who is a national of a Member State, or any legal person as referred to in Article 48 of the Treaty and established in a Member State, who offers or provides a service;

...

5) “establishment” means the actual pursuit of an economic activity, as referred to in Article 43 of the Treaty, by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out;

6) “authorisation...