Judgment — ECLI:EU:C:2018:44
Date: 2018-01-30
Language of the case: Dutch
Court formation: Grand Chamber
Subject matter: Right of establishment;Internal market - Principles;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary I considered the following: regarding the wording of the legal bases in the FEU Treaty, there is no difference between ‘coordination’, ‘approximation’ and ‘harmonisation’; harmonisation in the domain of the internal market can cover situations not covered by the fundamental freedoms guaranteed by the FEU Treaty; the provisions of Chapter III of Directive 2006/123 do not make any reference to cross-border activity, whereas those of Chapter IV do, and draft amendments to limit the whole directive to cross-border situations were rejected. 109. I have not had a change of mind on this question since my Opinion in Trijber and Harmsen. (91) In this Opinion I shall therefore limit myself to addressing additional arguments raised in the context of the current procedure as well as to the Court’s case-law on Directive 2006/123. 110. First, the difference in wording between the provisions of Chapter III and those of Chapter IV is crucial: establishment under the directive is supposed to cover all internal service provision (Chapter III). Economic operators should not be discouraged from establishing themselves in a Member State in the first place. For the rest, that is to say temporary provision of services, a cross-border element is inherent. Ergo, Chapter IV necessarily and logically requires the existence of a cross-border element. 111. Secondly, those provisions, (92) or even chapters, (93) of Directive 2006/123 which specifically refer to ‘another Member State’ and thereby to a cross-border situation should be regarded as applying specifically to cross-border situations which in no way prejudge other provisions of the directive applying in purely internal situations. 112. Thirdly, it cannot be said that the legal basis of the directive, that is to say Articles 53 and 62 TFEU, (94) only confers competence for addressing cross-border situations. Indeed, as the Commission stressed during the course of the hearing, the wording of Article 53(2) TFEU according to which, in the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions is dependent upon coordination of the conditions for their exercise in the various Member States, points in the opposite direction. 113. Moreover, Article 53 TFEU has already been resorted to by the EU legislature as a legal basis in situations which went beyond merely cross-border ones. This provision appears to me to be used consistently as the standard (and only) legal basis for harmonisation (95) in the domain of services. In particular, this is the case for the voluminous harmonisation in the sector of financial services. By way of example, I should like to mention the directives on the reorganisation and winding up of credit institutions, (96) on markets in financial instruments (MiFiD) (97) and on the capital adequacy of investment firms and credit institutions. (98) I have not come across a judgment of the Court on any of those directives where, in the context of Article 53 TFEU, an issue was made of the legal basis with respect to purely internal situations. (99) 114. Fourthly, we should examine the judicial practice of the Court. Here, it emerges that the Court interprets the provisions of Chapter III of Directive 2006/123 in situations which are purely internal in nature, without seeking a cross-border element nor resorting to its general case‑law on the admissibility of preliminary references which arise out of purely internal situations, as now summarised (and clarified) in Ullens de Schooten. (100) 115. In order to avoid any confusion, I would like to stress the fundamental difference between the following two questions: (a) does a directive cover situations which are purely internal in nature and (b) should the Court reply to a question even though the disputes in the main proceedings are confined within a single Member State. (101) Question a) concerns the material scope of a directive. It is a question of substance. If the answer to this question is ‘yes’, the matter ends there in the sense that no search for any possible cross-border elements is necessary. Question (b) on the other hand is not of a substantial, but of a formal nature. It is about the admissibility of a case. One only needs to analyse Question (b) if the answer to question (a) is ‘no’. Ullens de Schooten (102) deals with Question (b). 116. In Rina Services and Others, (103) a case on national legislation requiring companies classified as certification bodies to have their registered office in a particular Member State, although the facts of the case in the main proceedings were clearly confined to one Member State only, the Court, without addressing this issue, interpreted the provisions of Chapter III of Directive 2006/123. Subsequently, in Trijber and Harmsen, the Court did not answer the question whether the provisions of Chapter III of Directive 2006/123 apply in a purely internal situation. Instead, it looked for and found sufficient cross-border elements.(104) Such an approach changed with Hiebler. (105) The facts in Hiebler, a case about territorial restrictions allowing chimney sweeps to offer their services merely in the sweeping area in which they are resident were confined to one Member State. (106) The Court made no mention of a compulsory cross-border element and directly proceeded to an examination of the questions referred. (107) The same goes for the judgment in Promoimpresa and Others (108) which was about national legislation under which the period of validity of concessions of State‑owned maritime and lakeside property was automatically extended. Again, although the facts of the case before the referring court were confined to one Member State, (109) the Court, without making an issue of this confinement, interpreted the provisions of Chapter III. (110) By contrast, when it analysed Article 49 TFEU, it required a ‘cross-border interest’. (111) Furthermore, in Hemming and Others, a case about the requirement for the payment of a fee in the context of an application for an authorisation, all the facts were set in London. Neither the Court (112) nor the Advocate General (113) addressed that question. 117. In summary, I read the abovementioned cases where there was a purely internal situation in the following manner: by interpreting the provisions of Chapter III of Directive 2006/123, the Court presupposed that those provisions do apply in a purely internal situation. (114) As they fell within the material scope of Directive 2006/123, there was no need to look for any possible or potential cross-border elements. 118. Not surprisingly, I would propose that the Court in the case at issue should follow this case-law, which is why my answer to the fourth question is that the provisions of Chapter III of Directive 2006/123 are applicable to situations such as those in the main proceedings, regardless of whether or not all the factors are confined within a single Member State. 3. On possible cross-border elements (Question 3) 119. On the basis of the reply proposed to the fourth question, the third question becomes hypothetical. (115) 4. Zoning plan under Directive 2006/123 (Questions 2 and 5) 120. By the second and fifth questions, the referring court, in essence, seeks to ascertain whether the provisions of Directive 2006/123 preclude a municipal zoning plan such as the one at issue in the main proceedings, according to which an area is designated for retail trade in bulky goods, to the exclusion of a retail outlet for a shoe and clothing discount chain. 121. Given that the establishment of a retail outlet such as that in the main proceedings is of a permanent nature, the relevant provisions for the appraisal of this question are to be found in Chapter III of the directive, on ‘freedom of establishment for providers’. This Chapter III is, in turn divided into two sections: one on authorisations, dealing with authorisation schemes and relevant conditions and procedures (Section 1, that is Articles 9 to 13 of Directive 2006/123) and one on requirements prohibited or subject to evaluation (Section 2, that is Articles 14 and 15 of Directive 2006/123). The applicability of these sections depends on whether the zoning plan at issue constitutes a restriction in the form of an ‘authorisation scheme’ within the meaning of Article 4(6) of Directive 2006/123 or in the form of a ‘requirement’ under Article 4(7) of that directive. (a) On authorisations 122. An ‘authorisation scheme’, which triggers the applicability of Articles 9 to 13 of Directive 2006/123, is, pursuant to Article 4(6) of that directive, any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal or an implied decision, concerning access to a service activity or exercise thereof. 123. A decision is typically, though not necessarily in every instance, directed at an individual (natural or legal) person. This is not the case for a zoning plan, which is a document drafted independently in advance. In other words, while compliance with the zoning plan may be necessary to commence a service activity, the zoning plan itself is an act of a municipal council ex ante and in abstracto. It follows that a zoning plan does not constitute an authorisation scheme. 124. Such an understanding of the terms ‘authorisation scheme’ seems to me to be corroborated by the case-law of the Court. 125. Though the Court has, to my knowledge, not yet had to lay down in detail the distinction between an ‘authorisation scheme’ and other forms of restriction, it has been confronted in three instances with cases of authorisation schemes under Directive 2006/123: Trijber and Harmsen, (116)Promoimpresa and Others (117) and Hemming and Others. (118) At stake was always a decision by an administrative authority which was necessary before the service provider could commence its activity. In a similar vein, the EFTA Court classified a system of permits for builders in Norway as an authorisation scheme within the meaning of Article 16(2)(b) (119) of Directive 2006/123, as a permit was necessary for a building company starting construction work in Norway. 126. In all these cases the service provider (1) needed to request a decision from an authority, (2) received a decision addressed to it in concreto and (3) that decision and the compliance therewith was a prerequisite for the service provider to commence its activity. (120) 127. None of these three elements is present in the case at issue, which is why I hold the view that a zoning plan such as the one in the main proceedings does not constitute an authorisation scheme in the sense of Article 4(6) of Directive 2006/123. (b) On requirements 128. A ‘requirement’ under Article 4(7) is ‘any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States’. (121) 129. A zoning plan such as that of the municipality of Appingedam is an administrative provision which constitutes a conditio sine qua non for an economic operator to establish itself in such a municipality. It thus falls under the definition of a ‘requirement’ within the meaning of Directive 2006/123. (c) On recital 9 of Directive 2006/123 130. Before we go on to examine Articles 14 and 15 of Directive 2006/123, we must address the issue, raised by the referring court, whether recital 9 of that directive has as its effect to exclude a measure such as a zoning plan from the scope of the directive. 131. Recital 9 of the directive states that the 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’. 132. It is well known that while recitals of EU legal acts do not have any independent legal value, (122) the Court frequently resorts to them in interpreting provisions of an EU legal act and has also already done so with respect to Directive 2006/123. (123) In the EU legal order they are descriptive and not prescriptive in nature. Indeed, the question of their legal value does not normally arise for the simple reason that, typically, the recitals are reflected in the legal provisions of a directive. Good legislative practice by the political institutions of the EU tends to aim at a situation in which the recitals provide a factual background to the provisions of a legal text. 133. Recital 9, however, is not reflected elsewhere in the directive in the sense that it mirrors one of the (prescriptive) provisions. As a consequence, the areas listed in that recital are therefore not per se exempted from Directive 2006/123, just because they happen to be mentioned in that recital. The directive does not, therefore, contain a blind spot when it comes to zoning plans. 134. In so far as some parties to the proceedings have invoked the Court’s judgment in Libert and Others, (124) suffice it to state that, although recital 9 was mentioned in that judgment, the reason why the Court considered measures relating to social housing to fall outside the scope of Directive 2006/123 was the unambiguous wording of Article 2(2)(j) of that directive. (125) 135. This does not mean, however, that that recital is devoid of interpretative value. I read recital 9 against the backdrop of Member States’ obligation pursuant to Article 15(7) of Directive 2006/123 to notify the Commission of newly enacted requirements and of their obligation pursuant to Article 39(1)(b) of Directive 2006/123 to present a report to the Commission, containing the information specified in Article 15(5), on requirements to be evaluated. Surely, it cannot be expected of Member States that they should notify the Commission of each and every zoning plan, as a measure of town and country planning. 136. Ergo, recital 9 clarifies that in most cases urban planning laws do not constitute requirements under Directive 2006/123. The majority of urban planning laws, particularly those applicable erga omnes, do not affect service providers as they do not lay down a condition affecting a provider’s service. (126) Directive 2006/123 protects a services provider from burdens that affect service providers more than citizens who do not provide services, but it is clear that the directive does not intend to eradicate general administrative necessities such as building standards, road traffic rules or urban planning laws. Not everything that might have the most incidental effect on the freedom of establishment should constitute a requirement. 137. By contrast, recital 9 does not imply that a zoning plan is excluded from the scope of the directive altogether. Indeed, it may be that the zoning plan affects service providers specifically. Territorial restrictions (Article 15(2)) and authorisations for hypermarkets (recital 47) are expressly referred to in the directive. Moreover, in my understanding, any rule, regardless of its origin, which has as its effect higher establishment costs for service providers, falls, in principle within the scope of Directive 2006/123. 138. The measure at issue, namely a prohibition on pursuing certain retail activities in a certain area, creates such additional establishment costs and is, thus, caught by Directive 2006/123. 139. In the light of recital 9 of Directive 2006/123, a zoning plan such as the one at issue is not, therefore, excluded from the directive’s scope. (d) On Article 14(5) of Directive 2006/123 140. Article 14 of Directive 2006/123, on prohibited requirements, lists eight requirements which Member States can under no circumstances enact when it comes to the access to or the exercise of a service activity in their territory. This ‘black list’ seeks to ensure the systematic and swift removal of certain restrictions on freedom of establishment, regarded by the EU legislature and the case-law of the Court as adversely affecting the proper functioning of the internal market. (127) 141. Article 14(5) of Directive 2006/123, in short, prohibits making establishment subject to a case-by-case application of an economic test. While there seems to be a certain economic element to a zoning plan which forbids certain retail activities in certain areas, the measure falls outside Article 14(5) of Directive 2006/123. There is neither a case-by-case test applied before establishment, nor does the economic element of the measure seem to be predominant (128) (see analysis on the justification below). (e) On Article 15 of Directive 2006/123 142. The question which remains to be examined is whether the zoning plan comes under Article 15(2)(a) of Directive 2006/123, (129) which precludes quantitative or territorial restrictions. 143. As rightly pointed out by the Italian Government in its observations on the case, a zoning plan such as that in the case at issue constitutes such a territorial restriction. (130) The plan limits the potential space on which service providers can establish themselves, but it does not limit their number provided sufficient space is designated for their activities. 144. Such a restriction can only be justified if the conditions listed in Article 15(3) are satisfied. (131) 145. The assessment of facts under this provision is ultimately to be carried out by the referring court. On the basis of the information available, however, the measure at issue, that is to say the attribution of specific selling spaces, appears to me to be justified under Article 15(3) of Directive 2006/123. 146. We are in the presence of an indistinctly applicable measure, which applies in law and in fact in the same way to all service providers and which does not discriminate, directly or indirectly, on the basis of nationality. 147. The protection of the urban environment, invoked as an overriding reason relating to public interest, is recognised in Article 4(8) of Directive 2006/123 (132) which codifies, in this respect previous case-law on Article 56 TFEU. (133) A town may have an interest in contributing, by way of a zoning plan, to its centre retaining its vitality and maintaining its original character. Regulating which shops can be set up where can, in general, be part of such a policy. Moreover, a town may also want to influence the volume and flow of traffic inside and outside of town. It should be added that the measure in question is not an economic one in the sense that its purpose and effect is to favour certain retailers over others. It is rather about the way of life in a town and is very close to a cultural policy, which is also recognised as an overriding reason relating to the public interest in Article 4(8) of Directive 2006/123. (134) 148. The measure seems proportionate and not to exceed what is necessary in attaining its aim. Shopping centres outside the town centre have a self-reinforcing effect. Once some shops are outside the town centre and inhabitants take their cars there, that location also becomes more attractive to other shops which hitherto settled in the town centre. The only way to avoid the negative consequences of increased traffic and empty inner cities is thus to restrict the possibilities for service providers to settle outside the town centre. 149. In this context and crucially, it has been also made clear by the municipality in the case at issue that the measure does not prevent the establishment of the service providers in the town as such, since there is sufficient retail space available at affordable prices. (135) Indeed, there seems to be no indication that the zoning plan indirectly limits the number of retailers in the municipality. 150. As stated, whereas there seems to be no reason to assume the measure is disproportionate, this will be for the referring court to verify. Should the referring court come to the conclusion that the surfaces are limited to such an extent that providers such as Bristol BV cannot establish themselves or are deterred from doing so, the measure fails the proportionality test and would thus be precluded by Article 15 of Directive 2006/123. 151. The answer to the second and fifth questions should therefore be that a zoning plan such as that in the case at issue which only permits certain types of retail constitutes a territorial restriction within the meaning of Article 15(2)(a) of Directive 2006/123, which can be justified on the basis of Article 15(3) of that directive, if it is proven that it pursues the aim of protection of the urban environment in a proportionate manner. 5. On Articles 34 and 49 TFEU (Question 6) 152. In the light of the proposed reply to the previous questions, given that the case at hand falls within the scope of Directive 2006/123, an analysis with respect to the Treaty freedoms is not necessary.(136) VI. Conclusion 153. In light of all the foregoing considerations, I propose that the Court should answer the questions referred by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) and the Raad van State (Council of State, Netherlands) as follows: (1) Fees/charges, such as those at issue in the main proceedings in Case C‑360/15, levied by an authority of a Member State in respect of the processing of an application for consent with regard to the timing, location and manner of performance of excavation works associated with the installation of cables for a public electronic communications network fall within the scope of 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. They do not pertain to the field of taxation within the meaning of Article 2(3) of Directive 2006/123. (2) A retail activity consisting of the sale of goods such as shoes and clothing to consumers falls within the definition of ‘service’ in Article 4(1) of Directive 2006/123. (3) The provisions of Chapter III of Directive 2006/123 are applicable to situations such as those in the main proceedings in Case C‑31/16, regardless of whether or not all the factors are confined within a single Member State. (4) A zoning plan, such as the one in the case at issue in the main proceedings in Case C‑31/16, which only permits certain types of retail constitutes a territorial restriction within the meaning of Article 15(2)(a) of Directive 2006/123, which can be justified on the basis of Article 15(3) of that directive, if it is proven that it pursues the protection of the urban environment in a proportionate manner. 1 Original language: English. 2 See Article 3(3) TEU. 3 See Article 26(2) TFEU. 4 See Müller-Graff, P.-Chr., ‘Die Verfassungsziele der Europäischen Union’, point 113, in Dauses, M.A., Handbuch des EU-Wirtschaftsrechts, Band 1, EL 31, C. H. Beck, Munich, 2016. 5 Not least, because I would not want to be accused of plagiarism by the European Court of Human Rights which, as is well known, uses this terminology when it comes to interpreting the ECHR since its judgment of 25 April 1978, Tyrer v. The United Kingdom, ECLI:CE:ECHR:1978:0425JUD000585672, § 31. 6 Indeed, any policy area recognised as justification to a restriction, be it explicitly mentioned in the FEU Treaty or as developed by the Court of Justice in the form of a ‘mandatory requirement’ (or ‘imperative requirement’ or ‘overriding reason relating to the public interest’). 7 By, for instance, recognising that the restrictions to the fundamental freedoms go beyond a mere principle of non-discrimination on the basis of nationality, see, as regards goods, judgment of 11 July 1974, Dassonville (8/74, EU:C:1974:82), concerning establishment, judgment of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411), and with respect to services, judgment of 25 July 1991, Säger (C‑76/90, EU:C:1991:331). 8 By, for instance, limiting the scope of the free movement of goods in the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905), or, indeed, by regularly allowing for justified restrictions on the part of the Member States and by developing its case-law on grounds of justification not expressly referred to in the FEU Treaty. 9 To give the most benign examples: by recognising, in judgment of 20 February 1979, Rewe-Zentral (120/78, EU:C:1979:42, ‘Cassis de Dijon’), for goods and in judgment of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411), for establishment, that Member States could resort to grounds of justification other than those expressly contained in the FEU Treaty, the Court took into account, for instance, that there is such a thing as consumer protection or protection of the environment – concepts that were not on the minds of ‘the Masters of the Treaties’ in 1957. 10 The notable exception being the free movement of workers, see judgment of 6 June 2000, Angonese (C‑281/98, EU:C:2000:296). 11 Although, in practice, it is often easy to construe a situation with a cross-border element, see judgment of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641), and although the Court has been liberal when it comes to accepting preliminary references in cases the facts of which are clearly confined to a single Member State (for an authoritative summary of the case-law as it stands, see judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874). 12 See recitals 5 and 6 of Directive 2006/123. 13 Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36). 14 See Wathelet, M., ‘La genèse de la directive “services”’, in Ferrari-Breeur (ed.), La directive “services”,Bruylant, Brussels 2011, pp. 21-31, at pp. 23-25. 15 See Article 44(1) of Directive 2006/123. 16 This could be interpreted as a good sign in the sense that the directive meets its purported aim of providing for legal clarity, thereby reducing litigation. 17 Directive of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive, OJ 2002 L 108, p. 7). 18 Directive of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive, OJ 2002 L 108, p. 21), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37). 19 Directive of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive, OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) and as corrected (OJ 2013 L 241, p. 8). 20 Directive of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive, OJ 2002 L 108, p. 51). 21 Besides, the parties to the main proceedings as well as the Netherlands harbour doubts regarding the interpretation of Article 2(2)(c) of Directive 2006/123 as carried out by the referring court. 22 See recital 5 of Directive 2002/21. The other directives are Directive 2002/19, Directive 2002/22, and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (OJ 1998 L 24, p. 1). 23 Articles 1 and 2 of Directive 2002/21; see also Bell, R.S.K./Ray, N., EU Electronic Communications Law, Richmond Law & Tax, 2004, p. 24. 24 Recital 7 of Directive 2002/20. 25 Recital 36 of Directive 2002/20. 26 Given that the exact purpose of the network does not emerge from the facts submitted to the Court. It is for the referring court to establish whether the network constitutes, in addition, a ‘public communications network’ as defined by Article 2(d) of Directive 2002/21. 27 ‘Rights of use’ refer to the rights granting use of radio frequencies (see Article 5 of Directive 2002/20). However, this bears no relevance for the present case. 28 See e.g. judgment of 27 June 2013, Vodafone Malta and Mobisle Communications (C‑71/12, EU:C:2013:431, paragraphs 21 et seq.). 29 A charge not linked to a general authorisation is not caught by Article 12 of Directive 2002/20. See judgments of 17 December 2015, Proximus (C‑454/13, EU:C:2015:819, paragraph 22), and of 17 September 2015, Fratelli De Pra and SAIV (C‑416/14, EU:C:2015:617, paragraph 41). 30 As the Netherlands Government has not notified that commune to the Commission as a national regulatory authority. Such non-notification has been considered by the Court as sufficient for excluding the quality of national regulatory authority for a commune, see, for instance, judgment of 7 November 2013, UPC Nederland (C‑518/11, EU:C:2013:709, paragraph 53). 31 Emphasis added. 32 In the French and German language versions, Article 11 of Directive 2002/21 and Article 13 of Directive 2002/20 employ the same terms (‘autorité compétente’ or ‘zuständige Behörde’), whereas in the English language version there is a slight linguistic difference between a ‘relevant authority’ (Article 13 of Directive 2002/20) and a ‘competent authority’ (Article 11 of Directive 2002/21). In my view, however, there can be no doubt that both Article 11 of Directive 2002/21 and Article 13 of Directive 2002/20 refer to the same kind of authorities. 33 Indeed, it emerges from the Commission Communication on its 1999 public consultation on the new regulatory framework (COM(2000) 239 final, pp. 8-9) that the perceived problem by Telecoms operators were the overburdening licencing schemes by national regulators. As the attribution of radio frequencies and numbers necessitates some sort of authorisation scheme, fees for rights of way were regarded as an extra cost to these authorisations and licences. 34 See recital 1 of that directive. 35 See judgment of 12 July 2012, Vodafone España and France Telecom España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraph 28 and the case-law cited). 36 Article 8 of Directive 2002/21. 37 On the possibility that administrative costs distort competition see also Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, points 62 to 64). 38 It is worth noting that the regulatory framework applies to all electronic communications and not just to telephone providers, where a general authorisation scheme is usually necessary for the fact that a limited set of numbers and available radio frequencies needs to be attributed in a fair way. 39 Judgment of 12 July 2012 (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraphs 34 and 35). 40 Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, point 63). 41 In Belgacom and Mobistar, the case concerned a general tax which had to be paid based on the ground occupied and unlinked to the installation of a facility, see judgment of 4 September 2014 (C‑256/13 and C‑264/13, EU:C:2014:2149, paragraphs 36 and 37); in a similar way, the Court did not apply Directive 2002/20 to municipal legislation charging a tax on all telecommunication equipment in judgment of 17 December 2015, Proximus (C‑454/13, EU:C:2015:819). Neither in Proximus (paragraph 28) nor in Belgacom and Mobistar (paragraph 36) were the fees related to the installation of facilities, nor did the taxes have the character of making the market entry more onerous for new entrants that did not already have infrastructure installed. 42 According to the Netherlands Government, the Netherlands legislator transposed this article in Article 5.4 of the Telecommunication laws which grants the network provider the right to lay cables after having accorded time and place of the works with the competent municipality. 43 Judgment of 12 July 2012, Vodafone España and France Telecom España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraph 39). 44 See judgment of 18 January 1984, Ekro (327/82, EU:C:1984:11, paragraph 11). See also judgments of 19 September 2000, Linster (C‑287/98, EU:C:2000:468, paragraph 43), and of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141, paragraph 16). 45 See also recitals 19 and 20 of Directive 2006/123. 46 See also judgment of 27 February 2014, OSA (C‑351/12, EU:C:2014:110, paragraph 58). 47 On the value of recitals as a tool of interpretation, in particular as regards Directive 2006/123, see point 132 and footnote 123 of this Opinion. 48 ‘Distributive trades’ is the term commonly employed by the Commission to cover retail and similar activities, see e.g. p. 3 of the Communication setting up a retail action plan COM(2013)36 final. It is also worth noting that the original Report from the Commission to the Council and the European Parliament on the state of the internal market for services, presented under the first stage of the Internal Market Strategy for Services (COM(2002) 441 final) mentioned ‘retail’ a striking 35 times. I am well aware that the report constituted the basis for the initial draft of the Bolkestein directive, which was, subsequently subject to major modifications. That said, I am not under the impression that the objectives and provisions of the directive were altered in so far as the material scope and the activities covered are concerned. The contentious issues at the time were rather, as is all too well known, the country-of-origin principle and its various legal consequences and ramifications. On this last aspect, see Obwexer, W., Ianc, Sinziana, ‘Das binnenmarktliche Recht der Dienstleistungsfreiheit’, in Müller-Graff, P.-Chr. (ed.), Europäisches Wirtschaftsordnungsrecht (Enzyklopädie Europarecht, Band 4), Nomos, Baden-Baden, 2015, pp. 397-448, at pp. 428-429. 49 It should be stressed that, previously, the Court has already contented itself with a reference to recital 33 so as to hold that services of certification fell within the scope of the directive: see judgment of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraph 24). 50 See my Opinions in Joined Cases Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:505, points 36 and 54) and in Hiebler (C‑293/14, EU:C:2015:472, point 69). See also Opinions of Advocate General Cruz Villalón in Femarbel (C‑57/12, EU:C:2013:171, point 22) and in Rina Services and Rina (C‑593/13, EU:C:2015:159, point 39). 51 See Handbook on the implementation of the Services Directive, Office for Official Publications of the European Communities, 2007, point 2.1.1, available at http://bookshop.europa.eu/en/handbook-on-implementation-of-the-services-directive-pbKM7807096/. The Commission’s position, as expressed in the Handbook is perhaps not surprising since the Commission’s agenda appears to have been, right from the start, to include distributive trades within the scope of Directive 2006/123. 52 See judgments of 23 December 2015, Hiebler (C‑293/14, EU:C:2015:843, paragraphs 32, 53 and 73), and of 11 July 2013, Femarbel (C‑57/12, EU:C:2013:517, paragraph 37). 53 See position of the Parliament in the first reading. The Parliament proposed to delete recital 14 of the Commission’s Proposal. 54 See recital 33. 55 See Part III, Title IV, TFEU on free movement of persons, services and capital, which is in turn divided into Chapter 1 (Workers), Chapter 2 (Establishment), Chapter 3 (Services) and Chapter 4 (Capital and payments). 56 This systematic finding does not in any way alter the fact that the freedom to provide services primarily relates to service as a product. See, in this respect, Müller-Graff, P.-Chr., in Streinz, R. (ed.), EUV/AEUV Kommentar, C. H. Beck, Munich, 2nd edition, 2012, Artikel 56 AEUV, point 7. 57 See also Klamert, M., Services Liberalization in the EU and the WTO, Cambridge University Press, 2015, p. 177. 58 See also, albeit with reference to Chapter III of Directive 2006/123, Klamert, M., ibid. 59 See Article 56(1) TFEU. 60 In Article 57, second and third paragraphs, TFEU, it refers to ‘activities’, but it does so in an illustrative context. 61 Article 53 TFEU specifically refers to ‘activities’. 62 The term ‘activity’, in singular or plural is employed a striking 146 times in the directive: 85 instances in the preamble and 61 in the provisions of the directive. In contrast, the term ‘barrier(s)’ is referred to 15 times, and only in the preamble, whereas the term ‘restriction(s)’ is resorted to in 20 instances: 15 in the preamble and 5 in the provisions. 63 And notwithstanding the question of purely internal situations, discussed below. 64 In situations where someone establishes him or herself to sell goods or offer services. 65 See judgments of 11 May 1999, Pfeiffer (C‑255/97, EU:C:1999:240, paragraph 26), of 24 March 2011, Commission v Spain (C‑400/08, EU:C:2011:172, paragraphs 70 to 72), and, more recently, of 5 February 2014, Hervis Sport- és Divatkereskedelmi (C‑385/12, EU:C:2014:47, paragraph 24). 66 See, by way of example, Müller-Graff, P.-Chr., in Streinz, R. (ed.), EUV/AEUV Kommentar, C. H. Beck, Munich, 2nd edition, 2012, Artikel 56 AEUV, point 8; and Tiedje, J., in von der Groeben, H., Schwarze, J., Hatje, A. (eds), Europäisches Unionsrecht (Kommentar), Band 1, 7th ed., Nomos, Baden-Baden, 2015, Artikel 57 AEUV, point 30. 67 See judgment of 3 October 2006, Fidium Finanz (C‑452/04, EU:C:2006:631, paragraph 32). 68 See judgment of 14 October 2004, Omega (C‑36/02, EU:C:2004:614, paragraph 26 and the case-law cited). In legal writing see, by way of example, Frenz, W., Handbuch Europarecht, Band 1 Europäische Grundfreiheiten, Springer, 2. ed. 2012, p. 31, Rz. 74, and Hatzopoulos, V., ‘Recent Developments in the Case Law of the ECJ in the Field of Services’, Common Market Law Review, 2000, vol. 37, p. 51. 69 See, for instance, judgment of 13 January 2000, TK-Heimdienst (C‑254/98, EU:C:2000:12). Also, a prohibition of sale at a loss was examined under the provisions of free movement of goods: see judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 10). As is well known, the Court in Keck and Mithouard considered even that freedom not to apply. 70 Judgment of 26 May 2005 (C‑20/03, EU:C:2005:307). 71 See judgment of 26 May 2005, Burmanjer and Others (C‑20/03, EU:C:2005:307, paragraph 34). 72 Judgments of 30 April 1974, Sacchi (155/73, EU:C:1974:40), and of 18 March 1980, Debauve and Others (52/79, EU:C:1980:83). A case on trade fairs came under the freedom to provide services and the freedom of establishment: see judgment of 15 January 2002, Commission v Italy (C‑439/99, EU:C:2002:14). Coffeeshops were scrutinised under the freedom to provide services: see judgment of 16 December 2010, Josemans (C‑137/09, EU:C:2010:774, paragraph 50). 73 One exception in the appreciation of advertisements in terms of the delimitation of fundamental freedoms is the judgment of 25 March 2004, Karner (C‑71/02, EU:C:2004:181, paragraph 47), where the Court implied that advertising falls into the ambit of multiple freedoms, but then found the goods aspect to be predominant. 74 See judgment of 22 January 2002, Canal Satélite Digital (C‑390/99, EU:C:2002:34, paragraph 29). 75 See Opinion of Advocate General Stix-Hackl in Canal Satélite Digital (C‑390/99, EU:C:2001:147, point 35). 76 See judgments of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344, paragraphs 39 and 48), and of 8 March 2001, Gourmet International Products (C‑405/98, EU:C:2001:135, paragraphs 13 and 35). 77 Neither did, incidentally, Advocate General Jacobs in either of those cases. See his Opinions in Joined Cases De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1996:333) and in Gourmet International Products (C‑405/98, EU:C:2000:690). 78 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 79 Such a precision was, in my view, necessary, given that, in Keck and Mithouarditself, the Court did not consider fundamental freedoms other than the free movement of goods: see judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 6). 80 Judgment of 16 June 2015 (C‑593/13, EU:C:2015:399). As pointed out by Advocate General Cruz Villalón in his Opinion in that case, this was the first case in which the provisions of Directive 2006/123 applied in practice: see his Opinion in Rina Services and Rina (C‑593/13, EU:C:2015:159, point 1). 81 In casu a Member State’s legislation requiring companies classified as certification bodies to have their registered office in that Member State. 82 Article 52(1) TFEU. 83 According to which Member States are to apply its provisions ‘in compliance with the rules of the FEU Treaty on the right of establishment and the free movement of services’. 84 See judgment of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraphs 36 to 40). This was reiterated in judgment of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 47). 85 See also Schönberger, Chr., ‘Normenkontrollen im EG-Föderalismus: die Logik gegenläufiger Hierarchisierungen im Gemeinschaftsrecht’, Europarecht, 2003, pp. 600-627, at p. 621, according to whom primary law is to be understood more as the motor, rather than the limit, of harmonisation measures. 86 Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905). 87 See Kotler, P./Armstrong, G., Principles of Marketing, 14th ed., Pearson Prentice Hall, 2012, Chapter on Retail, pp. 374‑394, at p. 384. 88 See Question 2 in Case C‑340/14 and Question 1 in Case C‑341/14, respectively paragraphs 28 and 37 in judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641). 89 See Joined cases C‑340/14 and C‑341/14, EU:C:2015:505, points 49 to 57. 90 The Court, in that case, saw no need to address and therefore declined to answer the question of purely internal situations, given that, in both cases the situations which were the subject of the questions referred were not purely internal: see judgment of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 42). 91 I subsequently reiterated my view in my Opinions in Hiebler (C‑293/14, EU:C:2015:472, point 24) and in Joined Cases Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:122, point 50). 92 See, by way of example, Article 5(3) of Directive 2006/123. 93 See, for instance, Chapter VI of the directive. 94 Formerly Articles 47(2) and 55 EC. 95 The Court itself refers to ‘harmonisation’ in this respect: see judgment of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606, paragraph 36). 96 Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190). 97 Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1). 98 Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast) (OJ 2006 L 177, p. 201). 99 Even though these included a case where the Court sat as full Court (see judgment of 12 October 2004, Paul and Others, C‑222/02, EU:C:2004:606), which concerned First Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ 1977 L 322, p. 30), Council Directive 89/299/EEC of 17 April 1989 on the own funds of credit institutions (OJ 1989 L 124, p. 16), and Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC (OJ 1989 L 386, p. 1), all of which had been adopted under Article 53 TFEU. 100 Judgment of 15 November 2016 (C‑268/15, EU:C:2016:874). 101 See also my Opinion in The Gibraltar Betting and Gaming Association (C‑591/15, EU:C:2017:32, point 62). 102 Judgment of 15 November 2016 (C‑268/15, EU:C:2016:874). 103 See judgment of 16 June 2015 (C‑593/13, EU:C:2015:399). Advocate General Cruz Villalón addressed the issue in his Opinion and came to the conclusion that there were sufficient (potential) cross-border elements: see his Opinion in Rina Services and Rina (C‑593/13, EU:C:2015:159, points 14 and 15). It should, nevertheless, be noted that the Advocate General did not address the question of whether purely internal situations fall under Chapter III of Directive 2006/123. 104 See judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 42). 105 Judgment of 23 December 2015 (C‑293/14, EU:C:2015:843). 106 They were even confined to a region within the Member State concerned, which, as I argued in my Opinion was without relevance, as a cross-border element was not necessary, see my Opinion in Hiebler (C‑293/14, EU:C:2015:472, points 23 and 24). 107 See judgment of 23 December 2015, Hiebler (C‑293/14, EU:C:2015:843, paragraphs 27 et seq.). 108 Judgment of 14 July 2016 (C‑458/14 and C‑67/15, EU:C:2016:558). 109 In my Opinion in Joined Cases Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:122, point 50), I reiterated my view that the provisions of Chapter III of Directive 2006/123 on freedom of establishment are applicable whether or not there is a cross-border element. 110 See judgment of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraphs 27 et seq.) 111 See judgment of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraph 68). 112 See judgment of 16 November 2016, Hemming and Others (C‑316/15, EU:C:2016:879). 113 See Opinion of Advocate General Wathelet in Hemming and Others (C‑316/15, EU:C:2016:618). 114 Case-notes in legal literature have also drawn this conclusion, in so far as they analysed that question. See, for instance, Reinstadler, A., Reinalter, A., ‘Partikuläre Anwendung der RL 2006/123/EG auf rein innerstaatliche Sachverhalte?’, Zeitschrift für Europarecht, internationales Privatrecht und Rechtsvergleichung, 2016, pp. 124-126, at p. 125; Korte, S., ‘Dienstleistungsfreiheit: Gebietsbeschränkungen für Rauchfangkehrer’, Europäische Zeitschrift für Wirtschaftsrecht, 2014, pp. 224-229, at p. 228; and Streinz, R., ‘Anwendungsbereich der DienstleistungsRL bei rein innerstaatlichen Sachverhalten; Kohärenz und Systematik als Maßstab für die Verhältnismäßigkeit der territorialen Beschränkung von Gewerbekonzessionen’, Juristische Schulung, 2016, pp. 759-761, at p. 761. Critical, with respect to my Opinion in Joined Cases Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:505), Schiff, A., ‘Zur Anwendbarkeit der Dienstleistungsrichtlinie auf Inlandssachverhalte’, Zeitschrift für europäisches Wirtschaftsrecht, 2015, pp. 899-904, at p. 901. 115 See also point 115 of this Opinion. 116 Judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641). 117 Judgment of 14 July 2016 (C‑458/14 and C‑67/15, EU:C:2016:558). 118 Judgment of 16 November 2016 (C‑316/15, EU:C:2016:879). 119 Judgment of the EFTA Court of 28 September 2015, EFTA Surveillance Authority v The Kingdom of Norway, EFTA Court Report 2015-484, paragraph 50. 120 See the wording of Article 4(6), my emphasis: ‘“authorisation scheme” means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the exercise thereof”. 121 Or in consequence of case-law, administrative practice, the rules of professional bodies, or the collective rules of professional associations or other professional organisations, adopted in the exercise of their legal autonomy. 122 Judgments of 19 November 1998, Nilsson and Others (C‑162/97, EU:C:1998:554, paragraph 54), of 24 November 2005, Deutsches Milch-Kontor (C‑136/04, EU:C:2005:716, paragraph 32), and Opinion of Advocate General Ruiz-Jarabo Colomer in TeliaSonera Finland (C‑192/08, EU:C:2009:309, paragraphs 87 to 89). 123 See judgments of 8 May 2013 (C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 104); of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraphs 24 and 38), of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641, paragraphs 44, 49, 52 and 53), of 23 December 2015, Hiebler (C‑293/14, EU:C:2015:843, paragraphs 41, 44 and 73), of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraphs 39, 44 and 48), of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraphs 62, 63, 88, 106 and 111), and of 16 November 2016, Hemming and Others (C‑316/15, EU:C:2016:879, paragraph 28). 124 See judgment of 8 May 2013 (C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 104). 125 According to which the directive does not apply to social services relating to social housing. 126 See also Rodin, S., ‘Scope of the Services Directive 2006/123/EC’, in Conference notes Internal Market for Services, University of Maribor, 2009, p. 21, and Klamert, M., Services Liberalization in the EU and the WTO, Cambridge University Press, 2015, p. 285. 127 See judgment of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraph 39). 128 In the legal literature, the purpose of Article 14(5) is seen as being a test of economic demand (‘Bedarfsplanung’), see e.g. Schlachter, M./Ohler, Chr., Europäische Dienstleistungsrichtlinie, Handkommentar, Nomos, Baden-Baden, 2008, Artikel 14, point 16. 129 Article 15 is directly applicable and can be relied upon by individuals against a Member State: see my Opinion in Hiebler (C‑293/14, EU:C:2015:472, point 53). 130 See also points 6.2.5 and points 6.3.1 of the Commission Handbook on the Services Directive. 131 The wording of Article 15(3) of the directive is reminiscent of the Court’s formulation, in judgment of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph 37). See also Davies, G., ‘The Services Directive: extending the country of origin principle, and reforming public administration’, European Law Review, vol. 32, 2007, pp. 232‑245, at p. 234. On the requirements of Article 15(3) of the directive, see, moreover, Botman, M. R., De Dienstenrichtlijn in Nederland, Boom Juridische uitgevers, Den Haag, 2015, Chapter 7, § 4.1.2, p. 275. 132 It is, in addition, referred to as an overriding reason relating to the public interest in recitals 40, 56 and 66 of Directive 2006/123. Recital 40 even specifies expressly that it includes town and country planning in the protection of the urban environment. 133 See judgment of 29 November 2001, De Coster (C‑17/00, EU:C:2001:651, paragraph 38). 134 Even if cultural policy had not appeared in the case-law of the Court before the adoption of the directive, as is pointed out by Barnard, C., ‘Unravelling the services directive’, 45 Common Market Law Review, 2008, pp. 323-396, at p. 354. 135 The situation is thus strikingly different from the facts in Commission v Spain, where a Spanish law systematically excluded a certain type of retail outlet: see judgment of 24 March 2011 (C‑400/08, EU:C:2011:172). 136 See judgment of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 118).