Opinion of the Advocate General — ECLI:EU:C:2020:640
Date: 2020-09-03
Language of the case: Czech
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Czechia

summary of the Court’s case-law in the matter before that judgement, see Opinion of Advocate General Wahl in Joined Cases Venturini and Others (C‑159/12 to C‑161/12, EU:C:2013:529). 26 See, in this sense, also, my Opinion in Joined Cases X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 115). 27 See judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 50). 28 See judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 51). 29 See judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 52). 30 See judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 53). 31 Judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641). 32 See judgment of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 41). My emphasis. 33 The judgment of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641), therefore constitutes a case with an interesting twist: having established that certain situations were not purely internal in nature, the Court declined to answer the material questions of the referring court which precisely sought to ascertain whether the provisions of the Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) (‘the Services Directive’) relating to the freedom of establishment of service providers applied to purely internal situations. It was only later, in the judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44), that the Court answered this question — in the affirmative. 34 See judgment of 15 November 2016 (C‑268/15, EU:C:2016:874). 35 The case at issue is to be examined with respect to the Treaty provisions. The Services Directive does not apply to gambling activities; see Article 2(2)(h) of that directive. If gambling activities had been covered by that directive, then the question of the referring court would not have presented itself, as the chapter on the establishment of service providers applies ratione materiae to purely internal situations; see judgment of 30 January 2018, X and Visser (C‑360/15 and C‑31/16, EU:C:2018:44). 36 In the terminology of Müller-Graff, P.‑Chr., in Streinz, R. (ed.), EUV/AEUV Kommentar, C.H.Beck, Munich, 3rd edition, 2018, Artikel 56 AEUV, point 1. 37 See Article 57 TFEU, according to which services are to be considered as services within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. The Court has ruled in this respect that the concept of ‘services’ covers services which are not governed by other freedoms, in order to ensure that all economic activity falls within the scope of the fundamental freedoms, from which I infer that this is not a subsidiary, but a residual fundamental freedom. See my Opinion in Joined Cases X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 88). 38 See judgment of 17 December 1981, Webb (279/80, EU:C:1981:314, paragraph 17). 39 See judgment of 3 December 1974, van Binsbergen (33/74, EU:C:1974:131, paragraph 27). 40 The freedom to provide services under Article 56 TFEU requires thus not only the elimination of all discrimination against service providers established in other Member States on grounds of nationality, but also the abolition of any restriction, even if it applies without distinction to national service providers and service providers from other Member States. This constitutes consistent case-law since the judgment of 25 July 1991, Säger (C‑76/90, EU:C:1991:331, paragraph 12). See, moreover, judgments of 18 July 2013, Citroën Belux (C‑265/12, EU:C:2013:498, paragraph 35), and of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International (C‑42/07, EU:C:2009:519, paragraph 51). In the judgment of 30 November 1995, Gebhard(C‑55/94, EU:C:1995:411, paragraph 37), though that was a case on the freedom of establishment, the Court referred not only to that specific freedom: ‘national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty’. My emphasis. 41 See judgments of 31 January 1984, Luisi and Carbone (286/82 and 26/83, EU:C:1984:35, paragraph 16), and of 8 September 2009, Liga Portuguesa de Futebol Profissional and Bwin International (C‑42/07, EU:C:2009:519, paragraph 51). 42 This view is also shared by Randelzhofer, A. and Forsthoff, U., in Grabitz, E., Hilf, M. and Nettesheim, M., Das Recht der Europäischen Union, 57. updated February 2020, C.H.Beck, Munich, Art. 56, Art. 57 AEUV, point 3. 43 These are basically analogous to the definition of ‘trade in services’ under the General Agreement on Trade in Services annexed to the Agreement establishing the WTO (‘the GATS’). Under Article 1(2) of the GATS, trade in services is defined as comprising four modes of supply of services: (1) cross-frontier supplies not involving any movement of persons; (2) consumption abroad, which entails the movement of the consumer into the territory of the WTO member country in which the supplier is established; (3) commercial presence, that is, the presence of a subsidiary or branch in the territory of the WTO member country in which the service is to be rendered; (4) the presence of natural persons from a WTO member country, enabling a supplier from one member country to supply services within the territory of any other member country. 44 This is often termed ‘active’ free movement of services. 45 See Opinion of Advocate General Lenz in Cowan (186/87, not published, EU:C:1988:526, point 14). 46 This is often termed ‘passive’ free movement of services. On this concept, see Völker, St., Passive Dienstleistungsfreiheit im Europäischen Gemeinschaftsrecht, Duncker & Humblot, Berlin, 1990, p. 61 et seq. 47 Typical examples include tourist groups which cross a border together with a guide. 48 Notably via telecommunication or the Internet. 49 See, also, the wording of Article 56 TFEU. 50 In contrast to the freedom of movement of workers and the freedom of establishment, the freedom to provide services does not determine the necessary cross-border element by reference to the holder of the freedom, but to the service relationship. The freedom to provide services is in particular not precluded because the recipients or providers of services have the same nationality. See, in more detail, Randelzhofer, A. and Forsthoff, U., op. cit. 51 See Article 34 TFEU. 52 See Article 35 TFEU. 53 Incidentally, the Keck case-law, to which we will come back in detail below, only applies to imports. It was handed down under what is now Article 34 TFEU and it applies only in the context of indistinctly applicable measures in law and in fact. By contrast, Article 35 TFEU only applies to discriminatory measures. 54 See judgment of 17 May 1994, Corsica Ferries (C‑18/93, EU:C:1994:195, paragraph 30). 55 See judgment of 10 May 1995, Alpine Investments (C‑384/93, EU:C:1995:126, paragraph 19). 56 Ibid. 57 See, in this sense, also Müller-Graff, P.‑Chr., op. cit., and Holoubek, M., in Schwarze, J., Becker, U., Hatje, A. and Schoo, J. (eds), EU-Kommentar, 4th ed., Nomos, Baden-Baden, 2019, Art. 57 AEUV, point 42. 58 C‑581/18, EU:C:2020:77, point 30. My emphasis. 59 As opposed to the Member State of destination. 60 See judgment of 10 May 1995 (C‑384/93, EU:C:1995:126, paragraph 30). 61 Judgment of 7 May 1998 (C‑350/96, EU:C:1998:205, paragraph 25). 62 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 63 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 64 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 65 I deliberately exclude in my analysis the case-law on the specific issue of taxes. Here, it is well known that the Court follows, quite rightly, an approach which is closer to that of discrimination-based restrictions. Even if the cases are complex. The reason is simple: taxes tend to be by their very nature indistinctly applicable in law and in fact. It would be difficult to justify that they automatically come within the ambit of the fundamental freedoms and that, as a default position, Member States must justify them. It is for this reason that I fully agree with the Court if it rules in this specific domain that if the only effect of taxes is to create additional costs in respect of the service in question and if they affect in the same way the provision of services between Member States and that within one Member State, then they do not fall within the scope of Article 56 TFEU. See, by way of example, judgments of 8 September 2005, Mobistar and Belgacom Mobile (C‑544/03 and C‑545/03, EU:C:2005:518, paragraph 31), and of 17 February 2005, Viacom Outdoor (C‑134/03, EU:C:2005:94, paragraph 38). 66 Incidentally, not long after the judgment of 24 November 1993, Keck and Mithouard(C‑267/91 and C‑268/91, EU:C:1993:905). This is an indication that at least at the time the Court saw no need to introduce a limitation to the scope of the freedom to provide services. 67 Judgment of 30 November 1995 (C‑55/94, EU:C:1995:411). 68 Judgment of 10 May 1995 (C‑384/93, EU:C:1995:126). 69 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 70 See Opinion of Advocate General Bobek in TÜV Rheinland LGA Products and Allianz IARD (C‑581/18, EU:C:2020:77, point 31). 71 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 72 See my Opinion in Deutsche Parkinson Vereinigung (C‑148/15, EU:C:2016:394, point 23). 73 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 74 See, in this sense, for instance, Müller-Graff, P.‑Chr., in von der Groeben, H., Schwarze, J. and Hatje, A. (eds), Europäisches Unionsrecht (Kommentar), 7th ed., Nomos, Baden-Baden, Artikel 34 AEUV, point 247. 75 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 76 Electricity, for instance, being a notable exception as to the requirement of tangibility. 77 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 14). 78 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 79 French economic operators wanted to sell, in France, at a loss, picon bière, a product originating in France, and were impeded from doing so on the basis of a French law. 80 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 81 Ibid., paragraph 14. 82 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 83 See judgment of 30 January 2018 (C‑360/15 and C‑31/16, EU:C:2018:44, paragraph 97). See, also, my Opinion in Joined Cases X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, points 87 to 104). 84 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 85 See Snell, J., ‘Independence day for the Services Directive: Visser’, Common Market Law Review, 2019, vol. 56, pp. 1119-1136, at p. 1129. 86 See, among many, Mattera, A., ‘De l’arrêt “Dassonville” à l’arrêt “Keck”: l’obscure clarté d’une jurisprudence riche en principes novateurs et en contradictions’, Revue du marché unique européen, 1994, No 1 pp. 117-160; Gormley, L., ‘Reasoning Renounced? The Remarkable Judgment in Keck & Mithouard’, European Business Law Review, 1994, pp. 63-67; Steindorff, E., ‘Unvollkommener Binnenmarkt’, Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht, 1994, pp. 149-169; Lenz, C.O., ‘Ein undeutlicher Ton’, Neue juristische Wochenschrift, 1994, pp. 1633-1634. For a defence of the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905), see Joliet, R. (one of the judges in that judgment), ‘Der freie Warenverkehr: Das Urteil Keck und Mithouard und die Neuorientierung der Rechtsprechung’, Gewerblicher Rechtsschutz und Urheberrecht, internationaler Teil, 1994, pp. 979-987. See, also, my Opinion in Deutsche Parkinson Vereinigung (C‑148/15, EU:C:2016:394, point 21 et seq.).