R. L. Trijber (C-340/14) v College van burgemeester en wethouders van Amsterdam and J. Harmsen (C-341/14) v Burgemeester van Amsterdam.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2015:505
• Docket Number: C-340/14,C-341/14
• Date: 16 July 2015
• Procedure Type: Cuestión prejudicial - sobreseimiento

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 16 July 2015 (1)

Joined Cases C‑340/14 and C‑341/14

R.L. Trijber (C‑340/14)

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

(Directive 2006/123/EC – Article 2(2)(d) – Concept of services in the field of transport – Application of Chapter III of Directive 2006/123 in purely internal situations – Article 11(1)(b) – Duration of authorisation)

J. Harmsen (C‑341/14)

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

(Directive 2006/123/EC – Application of Chapter III of Directive 2006/123 in purely internal situations – Article 10(2)(c) – Conditions governing the granting of authorisations – Action against trafficking in human beings)

1. The present two cases, which relate to proceedings between Mr Trijber and the College van burgemeester en wethouders van Amsterdam (Board of Mayor and Aldermen of Amsterdam, hereafter ‘the College’) and Mr Harmsen and the Burgemeester van Amsterdam (Mayor of Amsterdam), raise a number of fundamental questions relating to the scope of application as well as substantive requirements in the chapter on establishment of Directive 2006/123/EC. (2)

I – Legal framework

A – European Union law

2. Article 2 of Directive 2006/123 is headed ‘Scope’ and reads 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:

…

(d) services in the field of transport, including port services, falling within the scope of Title V of the Treaty

…’

3. According to Article 4 of Directive 2006/123, entitled ‘Definitions’,

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

…

(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;

…

(8) “overriding reasons relating to the public interest” means reasons recognised as such in the case-law of the Court of Justice, including the following grounds: public policy; public security; public safety; public health; preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artistic heritage; social policy objectives and cultural policy objectives;

…’

4. Article 10 of the directive, headed ‘[Conditions] for the granting of authorisation’ is worded as follows:

‘1. Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.

2. The criteria referred to in paragraph 1 shall be:

(a) non-discriminatory;

(b) justified by an overriding reason relating to the public interest;

(c) proportionate to that public interest objective;

(d) clear and unambiguous;

(e) objective;

(f) made public in advance;

(g) transparent and accessible.

…’

5. Article 11 of Directive 2006/123 is headed ‘Duration of authorisation’ and reads as follows:

‘1. An authorisation granted to a provider shall not be for a limited period, except where:

…

(b) the number of available authorisations is limited by an overriding reason relating to the public interest;

…’

B – Dutch law

1. Services

6. Under Article 33(1)(b) and (c) of the Dienstenwet (Netherlands Law on Services), a law that partly transposes Directive 2006/123, a competent body may not limit the period of validity of an authorisation which it may grant for an unlimited period, except where the number of available authorisations is limited by an overriding reason relating to the public interest or a limited authorisation period can be justified by an overriding reason relating to the public interest.

2. Inland waterways

7. Under Article 2.4.5(1) of the Verordening op het binnenwater (Regulation on Inland Waterways) 2010, adopted by the Raad van de gemeente Amsterdam (City Council of the Municipality of Amsterdam), it is prohibited to transport goods or passengers by means of a commercial vessel without, or contrary to, an authorisation from the College. Under Article 2.4.5(5) of the same regulation, having regard to the interests relevant to limitations on the number of passenger vessels, the College may refuse the authorisation. Under Article 2.3.1(2) of that regulation, mooring authorisation may be denied in the interests of general welfare, planning, safety, the environment and smooth and safe passage.

8. Under Article 2.1(1) of the policy laid down in the Regeling passagiersvervoer te water Amsterdam (Regulation on Passenger Transportation by Water in Amsterdam), as it applied at the time of the contested decision in the main proceedings, authorisations are granted by means of allocation rounds. Under Article 2.1(3) of that policy, applications submitted at a time when there is no allocation round in force are to be rejected on the basis of a volume policy. Under Article 2.1(4) of the same policy, the College, in derogation from the first paragraph, may grant an authorisation outside of an allocation round for a specific initiative with environmental objectives or for an innovative transport concept.

3. Prostitution

9. Under Article 3.27(1) of the Algemene plaatselijke verordening 2008 van Amsterdam (2008 General Local Regulation of Amsterdam), it is prohibited to operate a prostitution business without authorisation of the Mayor. Under Article 3.30(2)(b), the Mayor may refuse authorisation if, in his opinion, it is not sufficiently likely that the operator or the manager will comply with the obligations referred to in Article 3.32.

10. Under Article 3.32(1), the operator and the manager of a prostitution business must ensure that in that business: (a) no offences within the meaning of Article 273f of the Wetboek van Strafrecht (Criminal Code) take place in respect of prostitutes; (b) only prostitutes are employed who are in possession of a valid residence permit or for whom the operator has an authorisation within the terms of Article 3 of the Wet arbeid vreemdelingen (Law on the employment of foreign nationals) and (c) the customers cannot become the victims of criminal offences such as robbery, theft, fraud or similar offences. Under Article 3.32(3), the operator of a window prostitution business must ensure that the prostitutes working in his prostitution business do not constitute a serious nuisance to the neighbourhood, do not breach the provisions in Article 2.12(4) and do not disturb public order.

11. Article 273f of the Criminal Code regulates in a detailed manner the criminal prosecution of human trafficking, which is punishable by a prison sentence of up to eight years or a fifth-category fine.

II – Facts

A – Case C‑340/14, Trijber

12. Mr Trijber owns a boat which is an open sloop powered by an electrical motor and is suitable for transporting small groups of up to 34 persons. He applied for an operating authorisation for that boat for the transportation of passengers by water. He wishes to use his boat to carry passengers, in return for payment, on a tour of Amsterdam by waterway, for example, for corporate outings or to celebrate a festive occasion.

13. By decision of 22 November 2011, the College refused the operating authorisation. The College based that refusal on its policy as laid down in Article 2.1 of the Regulation on Passenger Transportation by Water in Amsterdam because Mr Trijber made the application outside of an issuing round and because, according to the College, his boat does not constitute a special initiative and his transport concept is not innovative.

14. The College upheld that refusal by a decision of 27 April 2012.

15. By a ruling of 7 December 2012, the Amsterdam Rechtbank declared the appeal lodged by Mr Trijber against that decision to be unfounded.

16. Subsequently, Mr Trijber lodged an appeal against that ruling before the Raad van State, claiming that the policy pursued by the College is not in conformity with the provisions of Directive 2006/123.

B – Case C‑341/14, Harmsen

17. Mr Harmsen operates a window prostitution business in Amsterdam. He applied for authorisations from the Mayor for the operation of two further window prostitution businesses. In the corresponding operating plan which was submitted as part of this application, he stated that he would not rent out rooms to prostitutes with whom he could not communicate in English, Dutch or any other language comprehensible to him.

18. The Mayor refused such operating authorisations by decision of 28 July 2011. He based that refusal on events described in nine reports on the findings of supervisory officials of the City of Amsterdam and in two records of findings compiled by the police. All those events related to the operation of the existing window prostitution business of Mr Harmsen. Thus, according to the Mayor, contrary to what was stated by Mr Harmsen in the operating plan which he had submitted, Mr Harmsen rented rooms out in shifts to prostitutes from Hungary and Bulgaria who, during the immigration admission procedure, could not communicate in English, Dutch or any other language comprehensible to Mr Harmsen.

19. The Mayor contends that it follows from the reports and records referred to above that Mr Harmsen’s window prostitution business was not conducted in such a way as to prevent abuse. The Mayor is for that reason not confident that Mr Harmsen will put sufficient safeguards in place with regard to the two prostitution businesses which he envisages to ensure that no offences take place in respect of the prostitutes who might work there. The Mayor is of...