Opinion of the Advocate General — ECLI:EU:C:2005:203
Date: 2005-04-07
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Freedom to provide services – Treaty provisions – Field of application – Tax measures – Included – Limits (Art. 59 of the EC Treaty (now, after amendment, Art. 49 EC)) 2. Freedom to provide services – Restrictions – Telecommunications sector – Tax on mobile and personal communications infrastructures – Whether permitted – Conditions (Art. 59 of the EC Treaty (now, after amendment, Art. 49 EC)) 3. Competition – Public undertakings and undertakings to which Member States grant special or exclusive rights – Telecommunications sector – Directive 90/388 – Prohibitions on restrictions concerning infrastructure – Meaning of restriction – Tax on mobile communications infrastructures – Excluded – Conditions (Commission Directive 90/388, Art. 3c) 1. Article 59 of the Treaty (now, after amendment, Article 49 EC) requires not only the elimination of all discrimination on grounds of nationality, against providers of services who are established in another Member State, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit or further impede the activities of a provider of services established in another Member State where he lawfully provides similar services. In addition, Article 59 precludes the application of any national rules which have the effect of making the provision of services between Member States more difficult than the provision of services purely within one Member State. In that regard, a national tax measure restricting that freedom may constitute a prohibited measure, whether it was adopted by the State itself or by a local authority. Measures, the only effect of which is to create additional costs in respect of the service in question, do not fall within the scope of Article 59 of the Treaty. (see paras 28-31) 2. Article 59 of the Treaty (now, after amendment, Article 49 EC) must be interpreted as not precluding the introduction, by legislation of a national or local authority, of a tax on mobile and personal communications infrastructures used to carry on activities provided for in licences and authorisations granted to operators, which applies without distinction to national providers of services and to those of other Member States and affects in the same way the provision of services within one Member State and the provision of services between Member States, in so far as a cumulative effect of the local taxes which compromises the freedom to provide mobile telephony services is not established. (see paras 34-35, operative part 1) 3. Article 3c of Directive 90/388 on competition in the markets for telecommunications services, as amended, with regard to the implementation of full competition in telecommunications markets, by Directive 96/19, requires the lifting of all restrictions on operators of mobile and personal communications systems with regard to infrastructure. Tax measures applying to mobile communications infrastructures are not covered by that provision, except where those measures favour, directly or indirectly, operators which have or have had exclusive or special rights to the detriment of new operators and appreciably affect the competitive situation. (see paras 38, 50, operative part 2)