Viacom Outdoor Srl v Giotto Immobilier SARL.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Rosas
• ECLI: ECLI:EU:C:2004:676
• Docket Number: C-134/03
• Date: 28 October 2004
• Procedure Type: Cuestión prejudicial - inadmisible

OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 28 October 2004(1)


Case C-134/03

Viacom Outdoor Srl
v
Giotto Immobilier SARL



(Reference for a preliminary ruling from the Giudice di pace of Genova-Voltri)

(Municipal duties on advertising by means of bill posting – Public undertakings (Article 86 EC) – Abuse of a dominant position (Article 82 EC) – State aid (Articles 87 and 88 EC) – Freedom to provide services (Articles 49 EC and Article 50 EC) – Admissibility of a reference for a preliminary ruling (Article 234 EC))

I – Introduction 1. The present case concerns an Italian rule under which municipalities levy municipal duties on advertising, lay down certain provisions governing the practice of advertising in their territory (including rules on the number and location of available advertising spaces) and also operate their own municipal bill-posting service. It is essentially contended that the municipalities are operating as undertakings on a market for which they themselves also lay down the rules. 2. In this connection the Giudice di pace (Magistrate) of Genoa-Voltri (hereinafter also: the referring court) asks the Court to interpret the rules on competition laid down in the Treaty (Articles 82 EC, 86 EC, 87 EC and 88 EC) and freedom to provide services (Article 49 EC). With its questions, the referring court is making reference to the Court for a second time, after, by an order of 8 October 2002, the Court found a first reference for a preliminary ruling in the same case to be (manifestly) inadmissible. (2) II – Legal framework A – Community law 3. Articles 49 EC, 50 EC, 82 EC, 86 EC, 87 EC and 88 EC form the Community law framework for this case. B – National law Introduction 4. It is apparent from the submissions made to the Court that it is essentially possible to advertise in Italian municipalities with advertising material, with bills for example, in three different ways. First of all, private individuals may affix their advertising material to private installations. Secondly, it is possible for private individuals to use public spaces (e.g. streets or the walls of public buildings) to put up their (private) advertising material. Thirdly, advertising messages may be affixed to municipal installations, for example on advertising hoardings, that are provided by the respective municipality; in this case, bills may be posted either by the private individuals themselves or by a municipal service (hereinafter: the municipal bill-posting service). 5. A municipal advertising tax is always payable; where the municipal bill-posting service is used, however, this tax is already included in the charge payable for the bill-posting service. The national rules in detail 6. With regard to Italian national law, reference should be made, first of all, to Decreto legislativo No 446 of 15 December 1997 (3) (hereinafter: Decreto legislativo 446/97), Article 52 of which confers on provinces and municipalities the power to lay down by regulation rules governing their own income, subject to more precisely defined limits. 7. Decreto legislativo (4) No 507 of the President of the Republic of 15 November 1993 revising and harmonising the municipal advertising tax and the tax on public bill-posting (5) (hereinafter: Decreto legislativo 507/93) is also relevant to advertising in public spaces. 8. Article 1 of Decreto legislativo 507/93 provides: ‘Outdoor advertising and public bill-posting shall be subject … to a tax or a charge payable to the municipality in the territory of which it is carried out’. 9. Article 5(1) of Decreto legislativo 507/93 provides as follows: ‘The municipal advertising tax … shall be payable on the dissemination of advertising material using visual or acoustic means of communication, other than those subject to the bill-posting charge, in public places or places open to or visible to the public’. According to the referring court, the tax is therefore due on any (private) advertising material disseminated in the territory of the municipality to which the tax is payable. 10. Under Article 6(1) of Decreto legislativo 507/93, taxable persons are ‘those who … are provided with the means by which the advertising material is disseminated’. 11. Under Article 9(7) of Decreto legislativo 507/93, special user charges and certain payments (e.g. a rental charge) may also be levied, in addition to the municipal advertising tax, if public installations are used for advertising. 12. Special provisions governing the municipal bill-posting service, which must be set up in all municipalities with more than 3 000 inhabitants, are laid down in Article 18 et seq. of Decreto legislativo 507/93. Article 18(1) states: ‘The municipal bill-posting service provides for the posting, by the municipality, on installations designed for that purpose, of notices of any material ...’. 13. Furthermore, Article 19(1) of Decreto legislativo 507/93 provides: ‘In consideration of the public bill-posting service, a duty is payable jointly and severally by the person requesting the service and the person on whose behalf the service is requested, and inclusive of the advertising tax, to the municipality which performs that service’. 14. Articles 3 and 22(1) of Decreto legislativo 507/93 require municipalities, first, to lay down more precise rules governing taxation rates and the details for the levying of the municipal advertising tax – within certain limits prescribed by law – and, secondly, to adopt provisions on their municipal bill-posting service. Furthermore, they must lay down rules governing the practice of advertising; they may restrict or prohibit certain forms of advertising for reasons in the general interest. It is also necessary to lay down rules governing the costs incurred, provisions on the issue of licences and a general plan for advertising installations. It must also be decided in what proportion public spaces may be used for non-commercial advertising and for commercial advertising and how much advertising space is available for direct bill-posting by private individuals. 15. In the municipality of Genoa, a municipal regulation applying Decreto legislativo 507/93 was adopted on 21 December 1998 (hereinafter: municipal regulation of 1998). (6) As can be seen from the file in the case, it includes a licence requirement (Article 6), safety rules for public highways (Article 14), restrictions for reasons of environmental and architectural conservation (Articles 18 and 19), and details on the payment of the municipal advertising tax (Article 23 et seq.) and the charge for using the municipal bill-posting service (Article 29 et seq.). 16. The municipal regulation of 1998 was repealed with effect only from 1 January 2001 and replaced by new legislation from that date. (7) III – Facts and main proceedings 17. Proceedings are pending before the Giudice di pace of Genoa-Voltri between Viacom Outdoor S.r.l., (8) established in Milan, Italy (hereinafter: Viacom), and Giotto Immobilier SARL established in Menton, France (hereinafter: Giotto). Giotto sells property on the French Côte d’Azur, whilst Viacom provides advertising services for its customers. 18. Viacom invoiced Giotto in respect of remuneration for bill-posting advertising services that it had provided for Giotto in October 2000 in the Municipality of Genoa. As part of that remuneration, Viacom is also claiming a sum of ITL 439 385, i.e. EUR 226.92, as reimbursement for its expenditure on the municipal advertising tax which was payable to the Municipality of Genoa. Only this part of the remuneration is in dispute between the parties. 19. Viacom bases its claim for payment on a contract concluded between the parties on 9 September 2000. Under that contract, Giotto must pay Viacom remuneration for the bill-posting advertising service, which, in addition to the actual price of the service, also includes reimbursement of ‘specific, documented charges’ (Italian: ‘ oneri specifici e documentati ’). 20. However, Giotto refuses to reimburse the expenditure in question, claiming that the municipal advertising tax is contrary to Community law. The referring court takes the view that the action brought by Viacom would have to be dismissed if the municipal advertising tax proved to be contrary to Community law. IV – Reference for a preliminary ruling and proceedings before the Court of Justice 21. By an order of 10 March 2003, the Giudice di pace of Genoa-Voltri therefore stayed its proceedings and made reference to the Court of Justice for a preliminary ruling on the following questions: ‘1. Is the entrusting to a public undertaking (municipalities) of the management of a tax and duties such as those considered above, on a market which constitutes a substantial part of the common market and on which the public undertaking holds a dominant position inconsistent contrary to: (a) the application of Article 86 EC in conjunction with Article 82 EC; (b) the application of Article 86 EC in conjunction with Article 49 EC? 2. Is the payment to that public undertaking of the revenue from the tax and charges in question inconsistent contrary to: (a) the application of Article 86 EC in conjunction with Article 82 EC; (b) the application of Articles 87 EC and 88 EC, inasmuch as it constitutes unlawful State aid (not notified) and incompatible with the common market? 22. In the proceedings before the Court of Justice, Viacom and the Commission submitted written and oral observations, whilst Giotto and the Italian Government submitted only written observations. Viacom, Giotto and the Italian Government also gave written answers to...