Opinion of the Advocate General — ECLI:EU:C:2017:397
Date: 2017-05-18
Language of the case: Dutch
Subject matter: Right of establishment;Internal market - Principles;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Request for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 January 2016 — Visser Vastgoed Beleggingen BV v Raad van de gemeente Appingedam (Case C-31/16) Language of the case: Dutch Referring court Raad van State Parties to the main proceedings Applicant: Visser Vastgoed Beleggingen BV Defendant: Raad van de gemeente Appingedam Questions referred 1. Should the term ‘service’ in Article 4, paragraph 1, of the Services Directive 1 be interpreted as meaning that retail trade consisting of the sale of goods such as shoes and clothing to consumers is a service to which the provisions of the Services Directive apply under Article 2(1) of that Directive? 2. The scheme as referred to under 8 seeks to make impossible certain forms of retail trade, such as the sale of shoes and clothing, in areas outside the city centre with a view to maintaining the viability of the city centre and preventing vacant premises in inner city areas. Does a rule relating to such a scheme, having regard to recital 9 of the Services Directive, fall outside the scope of the Services Directive, because such rules must be regarded as pertaining to ‘town and country planning … 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’? 3. Is it sufficient in order to assume that a cross-border situation exists, that it cannot be excluded that a retail business from another Member State would be able to establish itself locally or that the customers of the retail business could be from another Member State, or should there be actual evidence thereof? 4. Is Chapter III (freedom of establishment) of the Services Directive applicable to purely internal situations, or is the assessment of the question of whether that chapter applies governed by the case-law of the Court of Justice concerning Treaty provisions on freedom of establishment and the free movement of services in purely internal situations? 5a. Does a scheme as referred to under 8 which is included in a zoning plan fall within the scope of the term ‘requirement’ as referred to in Article 4, paragraph 7, and Article 14, paragraph 5, of the Services Directive, and not within the scope of the term ‘authorisation scheme’ as referred to in Article 4, paragraph 6, and Articles 9 and 10 of the Services Directive? 5b. Do Article 14, paragraph 5, of the Services Directive — if a scheme as referred to under 8 falls within the scope of the term ‘requirement’ — or Articles 9 and 10 of the Services Directive — if a scheme as referred to under 8 falls within the scope of the term ‘authorisation’ — preclude a municipality from adopting a scheme as referred to under 8? 6. Does a scheme as referred to under 8 fall within the scope of Articles 34 to 36, or of Articles 49 to 55 of the TFEU and, if so, do the exceptions recognised by the Court of Justice apply, provided they are proportionate? ____________ 1 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).