Opinion of the Advocate General — ECLI:EU:C:2004:676
Date: 2004-10-28
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition;Agreements, decisions and concerted practices;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

summary, it must therefore be stated that if the levying of an indirect tax such as the municipal advertising tax in Italy appears to form part of a general system of domestic duties, if it is subject to objective, non-discriminatory criteria and if it also does not discriminate between domestic and cross-border activities, it is not precluded by Article 49 EC. 2. Prohibition of abuse of a dominant position (Article 82 in conjunction with Article 86 EC) 68. With regard to Article 82 EC in conjunction with Article 86 EC, the referring court asks two questions, which are answered below in the alternative. (50) Question 1(a) concerns the power of the municipality toset and levy municipal duties, whilst Question 2(a) concerns the payment of the income from those duties to the municipality. Both questions essentially focus on the possible existence of a distortion of competition in favour of the municipal bill-posting service and at the expense of private suppliers. a) Question 1(a): The combination of regulatory powers with activity as an undertaking (Article 82 EC in conjunction with Article 86 EC) 69. With its Question 1(a), the referring court essentially seeks to ascertain whether Article 82 EC in conjunction with Article 86 EC precludes a national provision under which municipalities that themselves operate a municipal bill-posting service are at the same time entrusted with the setting and levying (‘management’) of duties such as the municipal advertising tax and the charge for the municipal bill-posting service. 70. If, first of all, only this power held by municipalities to set and levy certain municipal duties is assessed on the basis of the rules of European competition law, the following conclusions can be drawn: 71. A basic requirement for the application of Article 82 EC (possibly in conjunction with Article 86(1) EC and Article 10 EC) would be that a municipal agency can be regarded as an undertaking in connection with the setting and levying of such duties. The term “undertaking” in competition law should be construed functionally and covers any entity engaged in economic activity, regardless of the legal status of the entity or the way in which it is financed. (51) 72. An economic activity (‘as an undertaking’) consists in offering goods and services on the market; this should be distinguished from activity as a public authority ‘exercising public powers’. The crucial factor in making the distinction is the nature of the activity exercised. In this connection, it is necessary to consider the activities exercised in each individual case in order to determine the category to which they belong. (52) 73. The setting and levying of taxes is, by nature, not an economic activity, but an act by a public authority. Taxes like the municipal advertising tax are certainly not a consideration for using specific, normal services, but serve broadly to finance local and regional authorities; (53) a possible subsidiary purpose of the tax may be to compensate for the use of public space for advertising by private individuals, (54) but such a subsidiary purpose does not in any way alter its status as a tax and does not, for example, make this income the consideration for a service. The public nature of the levying of taxes means that in this respect the rules on competition do not apply to the municipalities in question. (55) 74. As far as the charge for using the municipal bill-posting service is concerned, a distinction must be made between its two components. On the one hand, this charge has a tax element, because it includes the municipal advertising tax (Article 19(1) of Decreto legislativo 507/93); in this respect, the municipal advertising tax is merely replaced by the charge and the same must therefore apply to the setting and levying of this charge as to the setting and levying of the tax: the municipalities are acting as public authorities, not economically. On the other hand, this charge also includes a component which goes beyond the municipal advertising tax and serves as reimbursement of expenses for the municipal bill-posting service (remuneration element); in this respect, the municipalities set the consideration for a service provided by their municipal bill-posting service (56) and therefore act in the same way as undertakings operating on the market, i.e. economically. (57) 75. Consequently, a municipality or a municipal agency acts economically and may possibly be regarded as an undertaking within the meaning of European competition law only in so far as it sets the remuneration element of the charge under Article 19(1) of Decreto legislativo 507/93, the component of the charge which compensates for the services provided by its municipal bill-posting service. 76. There could possibly now be abuse within the meaning of Article 82 EC in conjunction with Article 86(1) EC where – assuming that its municipal bill-posting service holds a dominant position – a municipality sets the remuneration element of the charge excessively high or excessively low under Article 19(1) of Decreto legislativo 507/93 in violation of competition law. (58) However, in the present case there are not sufficient grounds to suggest such abuse, the ascertainment of which would require a comprehensive assessment of all the circumstances of the specific case. (59) 77. However, the simple competence to set and levy the municipal advertising tax – irrespective of the fact, as already discussed, that the municipality is not an undertaking – does not automatically give any cause for concern that the municipality might act abusively within the meaning of Article 82 EC in conjunction with Article 86(1) EC. This tax is neutral from the point of view of competition, irrespective of its composition and level, since it is levied both for the use of services provided by private suppliers and for the use of the municipal bill-posting service (in the latter case, as we know, the tax is included in the charge under Article 19(1) of Decreto legislativo 507/93). (60) 78. Viacom and Giotto complain that, in addition to setting and levying duties, the Italian municipalities also exercise other public powers, using which they were able to regulate the dissemination of advertising material in their territory and thereby influence the market in favour of their own municipal bill-posting services, for example by determining the location and size of the available bill-posting spaces and by introducing certain restrictions on advertising for reasons in the general interest. (61) It is essentially contended that the municipalities are operating as undertakings (through their municipal bill-posting service) on a market for which they themselves lay down the rules (exercising their abovementioned powers as public authorities). (62) In their view, this conflict of interests alone indicates a prohibited abuse of a dominant position. (63) 79. In this respect, however, the statements already made regarding the municipal advertising tax apply by analogy. Where a municipality regulates the dissemination of advertising material by, for example, prohibiting or restricting certain forms of advertising for reasons in the general interest and also determines the bill-posting spaces that may be used for advertising, it is not acting as an undertaking, but is performing the functions of a public authority. Competition law is not applicable to it a priori in this respect. 80. It is also in the legitimate general interest for municipalities to regulate the dissemination of advertising material. For example, it may be necessary in the interests of urban planning to prohibit advertising in certain places in the municipality’s territory, to restrict the available bill-posting spaces or to ban certain forms of advertising. Similarly, interests of environmental protection or traffic safety may justify restrictions. Furthermore, in defining and implementing their urban planning objectives and other general interests, the municipalities must be allowed a sufficient margin of discretion. 81. However, an infringement of Article 86(1) EC in conjunction with Article 82 EC, and possibly in conjunction with Article 10 EC, is a possibility where a municipality goes beyond the limits of the margin of discretion conferred on it and, in the exercise of its powers as a public authority, distorts competition in favour of its own municipal undertaking, i.e. where, in the performance of its functions as a public authority, the municipality favours its own municipal bill-posting service – assuming it holds a dominant position – over private suppliers operating on the same market. (64) This would be the case, for example, if it allocated to it the lion’s share of the available bill-posting space or if it made the activity of private suppliers subject to more stringent restrictions, on grounds of the general interest, than the activity of its own municipal bill-posting service. 82. However, to assess whether all this was true in the present case would require a comprehensive appraisal of all the circumstances of the specific case. In particular, it cannot be sufficient to consider the identified bill-posting spaces in purely quantitative terms (65) and merely to count how much of that space is reserved for private suppliers and how much for the municipal bill-posting service. As the Commission rightly argued in the oral procedure, the crucial factor is the quality and the location of the bill-posting spaces in question. It should also be taken into consideration whether and to what extent any restrictions imposed by the municipality also apply to the use of private spaces. On the basis of the information available to the Court, there are not sufficient grounds in any case to conclude that the Municipality of Genoa accords preferential treatment to the municipal bill-posting service. 83. In circumstances such as those that are known in the main proceedings, Articles 82 EC and 86(1) EC do not therefore preclude a national provision under which a municipal advertising tax or a charge is paid for advertising by means of bill-posting in public spaces to municipalities that at the same time themselves operate a municipal bill-posting service. b) Question 2(a): Payment of income from the advertising tax to the bill-posting service (Article 82 EC in conjunction with Article 86 EC) 84. With its Question 2(a), the referring court essentially seeks to ascertain whether Article 82 EC in conjunction with Article 86 EC precludes a national provision under which municipalities that themselves operate a municipal bill-posting service are paid the revenue from duties like the municipal advertising tax and the charge for the municipal bill-posting service. 85. Article 86(1) EC prohibits municipalities, as state bodies with public powers, from causing public undertakings to take action that would infringe Article 82 EC. (66) If, therefore, the municipality were to make revenue from the municipal advertising tax available to its municipal bill-posting service, it could not be ruled out that this would result in a distortion of competition to the detriment of private suppliers and in favour of the municipal bill-posting service. (67) 86. However, the municipal bill-posting service is part of the municipality and there is no reason to suggest that it has any notable organisational autonomy, in particular its own budget or separate accounts. Quite the opposite, it must be assumed that the municipal bill-posting service is financed directly from the municipal budget and that income and expenditure for that service is entered in the municipal books under the relevant headings. (68) Without a minimum of organisational separation and transparency, (69) however, it is not really possible to understand whether and to what extent the municipal bill-posting service benefits from tax revenue, in particular revenue from the municipal advertising tax. 87. Nevertheless, even if it were assumed that the municipal bill-posting service had sufficient organisational autonomy, it certainly cannot be established with any certainty, on the basis of the available information, that the Municipality of Genoa has caused abuse in violation of the rules on competition. 88. Up to now, as far as can be seen, the Court has considered the creation of a situation which gives an undertaking cause to abuse its dominant position only where the State had also granted that undertaking special rights – as a rule a monopoly position – and the nature of the grant of the rights or subsequent State conduct at least ‘suggested’ that the undertaking abuse its position. (70) In each case, it was necessary to establish a specific link between the rights granted, the situation created and the abuse of the undertaking’s dominant position. 89. However, since Article 86(1) EC prohibits Member States from taking measures not only in the case of undertakings that have been granted special rights, but also in the case of public undertakings, it seems reasonable to suggest that similar conclusions may be drawn in this area. (71) A public undertaking may be placed in a position which suggests that it will abuse its – assumed – dominant position not only through the grant of special rights or monopolies, but also through the provision of funds. (72) 90. Against this background, it should be examined, by means of an assessment of all the circumstances of the individual case, whether the nature and extent of any allocation of revenue from the municipal advertising tax to the municipal bill-posting service are liable to cause it to take anti-competitive action. However, there are no specific grounds to suggest such an allocation of funds in the present case. 91. In circumstances such as those that are known in the main proceedings, Articles 82 EC and 86(1) EC do not therefore preclude a national provision under which a municipal advertising tax or a charge is paid for advertising by means of bill-posting in public spaces to municipalities that at the same time themselves operate a municipal bill-posting service. 3. Question 2(b): Prohibition of State aid (Articles 87 and 88 EC) 92. With its Question 2(b), which is answered below in the alternative, (73) the referring court essentially seeks to ascertain whether there exists (possibly prohibited) State aid within the meaning of Article 87 EC, which is also covered by the obligation to inform the Commission and the prohibition on putting measures into effect under Article 88(3) EC, if the revenue from duties like the municipal advertising tax and the charge for the municipal bill-posting service is paid to municipalities that themselves operate municipal bill-posting services. 93. Viacom and Giotto, but also the referring court, regard the allocation of the income from the municipal advertising tax and the charges for the municipal bill-posting service to the municipality as unlawful State aid. Since they consider that the municipal advertising tax therefore infringes Community law, they take the view that there is no obligation to pay it. The object of the claims made by the parties in the main proceedings and the heart of the question referred for a preliminary ruling is therefore both the use and the actual levying of the municipal advertising tax and the charge for using the municipal bill-posting service. a) The municipal advertising tax 94. As far as the municipal advertising tax is concerned, on the basis of the information available to the Court, various grounds militate against the application of the provisions of the EC Treaty on State aid. 95. Even if it were assumed, along with the referring court and the parties in the main proceedings, that the municipality should be regarded all in all as an undertaking, this would not mean that the provisions on State aid were applicable. Based on such an assumption, the criterion of the State origin of the funds would not be satisfied; in this case the municipal advertising tax should be regarded as payment by a private undertaking (the advertising supplier, e.g. Viacom) to another undertaking (the municipality). In the absence of a transfer of State funds, there would consequently be no aid; this could not be altered by the fact that the obligation to pay the municipal advertising is based on mandatory provisions. (74) 96. Therefore, the only situation where there can be any question of the status of the municipal advertising tax under State aid law is a triangular relationship in which the municipality levies the tax, as a sovereign authority, and then aid is paid, from the income from that tax, to a sufficiently autonomous municipal bill-posting service. However, as has already been explained, neither the order for reference nor the explanations given by the parties contain sufficient information to show that the municipal bill-posting service has sufficient organisational autonomy, in particular with regard to its budget and accounts. (75) Nevertheless, if there is no ‘external relationship’ which would make it possible to accept a special payment of tax revenue, there is no autonomous beneficiary of aid. A municipality cannot subsidise itself. 97. However, even assuming the necessary organisational autonomy of the municipal bill-posting service, the actual levying of the municipal advertising tax would not be automatically be covered by the prohibition on aid laid down in Article 87 EC and by the obligation to inform the Commission and the prohibition on putting measures into effect under Article 88(3) EC. Additional requirements would have to be satisfied to that end; (76) in particular, there would have to be a direct and inseparable link between the levying of the municipal advertising tax and a specific payment, financed by that tax, made by the municipality to its municipal bill-posting service. (77) Only if there is such a direct link can the possible unlawfulness of aid extend to the levying of duties and can the rules on aid cover the levying of the tax. 98. In the present case there are no grounds for assuming either (unlawful) aid, the existence of which would in any case be a requirement, or the necessary direct and inseparable link between the aid and the levying of the tax. In particular, it must be assumed on the basis of the available information that the municipal advertising tax is allocated to the municipal budget for general use and is not, through a special fund for example, earmarked specifically for the financing of the municipal bill-posting service. b) The charge for using the municipal bill-posting service 99. As has already been mentioned, the charge for using the municipality bill-posting service is composed of a tax element and a remuneration element for the service provided by the bill-posting service. (78) 100. With regard to the tax element, the statements made above apply by analogy. (79) 101. As regards the remuneration element, it cannot constitute State aid from the outset. It is not paid from State funds, but from the private funds of customers of the municipal bill-posting service, (80) and is the consideration for its services; this is not an economic advantage, for example, that the municipal bill-posting service could not have obtained under normal market conditions. (81) c) Intermediate conclusion 102. In circumstances such as those that are known in the main proceedings, Articles 87 and 88 EC do not therefore preclude a national provision under which a municipal advertising tax or a charge is paid for advertising by means of bill-posting in public spaces to municipalities that at the same time themselves operate a municipal bill-posting service. VI – Conclusion 103. In the light of the foregoing considerations, I therefore propose that the Court should give the following answers to the questions referred to it for a preliminary ruling: 1) If the levying of an indirect tax such as the municipal advertising tax in Italy appears to form part of a general system of domestic duties, if it is subject to objective, non-discriminatory criteria and if it also does not discriminate between domestic and cross-border activities, it is not precluded by Article 49 EC. 2) In all other respects the reference for a preliminary ruling is inadmissible. In the alternative, I propose that the Court give the following answer to Question 1(a) and Question 2: In circumstances such as those that are known in the main proceedings, neither Article 82 EC nor Articles 87 and 88 EC, possibly in conjunction with Article 86(1) EC, preclude a national provision under which a municipal advertising tax or a charge is paid to municipalities for advertising by means of bill-posting in public spaces and those municipalities, which also themselves operate a municipal bill-posting service, are at the same time entrusted with setting and levying that tax. 1 – Original language: German. 2 – Order of October 2002 in Case C-190/02 Viacom I [2002] ECR I-8289. 3 – GURI No 298 of 23 December 1997, Suppl. Ord. 4 – Legislative decree. 5 – The title of this Decreto legislativo begins with ‘Revisione ed amministrazione dell’imposta comunale sulla pubblicità e del diritto sulle pubbliche affissioni’; it is published in GURI No 288 of 9 December 1993, Suppl. Ord. As far as the present case is concerned, it applies as amended by Decreto del Presidente della Repubblica No 43 of 28 January 1998 and by Decreto legislativo No 112 of 13 April 1999. 6 – New Regulation on the application of the advertising tax and on the performance of the public bill-posting service (Nuovo regolamento per l’applicazione dell’imposta sulla pubblicità e per l’effettuazione del servizio delle pubbliche affissioni). That municipal regulation was amended in 1999 and 2000. 7 – Article 39 of the municipal regulation of 26 March 2001 (Decision No 36/2001 of the Municipality of Genoa). 8 – Formerly: Società Manifesti Affissioni SpA. 9 – Cited in footnote 2. 10 – Order in Case 69/85 Wünsche III [1986] ECR 947, paragraph 15. 11 – See Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59, Case C-379/98 PreussenElektra [2001] ECR I-2099, paragraph 38, Case C-153/00 Der Weduwe [2002] ECR I-11319, paragraph 31, Case C-448/01 EVN AG and Wienstrom [2003] ECR I-0000, paragraph 74, and Joined Cases C-480/00, C-481/00, C-482/00, C-484/00, C-490/00, C-491/00, C-497/00, C-498/00 and C-499/00 Ribaldi [2004] ECR I-0000, paragraph 72. 12 – Case C-415/93 Bosman, paragraph 61, Case C-379/98 PreussenElektra, paragraph 39, and Case C-499/00 Ribaldi, paragraph 72, as well as Case C-448/01 EVN AG and Wienstrom, paragraph 76, and Case C-153/00 Der Weduwe, paragraph 33, each cited in footnote 11. 13 – As has been mentioned, Giotto is contractually obliged to reimburse ‘specific, documented charges’ (Italian: ‘oneri specifici e documentati’). 14 – It must be noted that in proceedings under Article 234 EC, which is based on a clear separation of functions between the national courts and the Court of Justice, any assessment of the facts in the case and any interpretation of national law is a matter for the national court (see, inter alia, Case C-386/02 Baldinger [2004] ECR I-0000, paragraph 14, Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089, paragraph 10, and Case C-235/95 Dumon and Froment [1998] ECR I-4531, paragraph 25, with further references. 15 – Page 3 of the order for reference, section B. (II). It is exclusively for the national court to interpret a civil contract in accordance with the relevant rules of its national law. In this way the present case differs from Der Weduwe, for example, where, without giving further reasons, a Belgian court had based its order for reference on a purely hypothetical assumption, namely on an uncertain interpretation of Luxembourg law, i.e. foreign law that was not its own (judgment cited in footnote 11, paragraphs 37 to 39). 16 – Case 104/79 Foglia I [1980] ECR 745, paragraph 10. 17 – Case C-412/93 Leclerc-Siplec [1995] ECR I-179, paragraph 14. 18 – See also Case 267/86 Van Eycke [1988] ECR 4769, paragraph 12. 19 – See the judgments in Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393, paragraph 6, and Case C-176/96 Lethonen and Castors Braine [2000] ECR I-2681, paragraph 22, and the orders in Case C-157/92 Banchero [1993] ECR I-1085, paragraph 4, Case C-66/97 Banco de Fomento e Exterior [1997] ECR I-3757, paragraph 7, and Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 15; see also the order in Case C-190/02 Viacom I (cited in footnote 2, paragraph 15). 20 – See the judgment in Case C-176/96 Lethonen and Castors Braine (cited in footnote 19, paragraph 23) and the orders in Case C-157/92 Banchero (cited in footnote 19, paragraph 5), Case C-116/00 Laguillaumie (cited in footnote 19, paragraph 19) and Case C-190/02 Viacom I (cited in footnote 2, paragraph 22). 21 – Judgment in Joined Cases C-480/00, C-481/00, C-482/00, C-484/00, C-490/00, C-491/00, C‑497/00, C-498/00 and C-499/00 Ribaldi (cited in footnote 11, paragraph 73), order in Joined Cases C-438/03, C-439/03, C-509/03 and C-2/04 Cannito and Others [2004] ECR I-0000, paragraphs 6 to 8 with further references, judgment in Joined Cases C-320/90 to C-322/90 Telemarsicabruzzo and Others (cited in footnote 19, paragraph 6) and order in Case C-190/02 Viacom I (cited in footnote 2, paragraph 14). 22 – Judgment in Joined Cases 141/81 to 143/81 Holdijk and Others [1982] ECR 1299, paragraph 6, order in Case C-66/97 Banco de Fomento e Exterior (cited in footnote 19, paragraph 7), judgment in Case C-176/96 Lethonen and Castors Braine (cited in footnote 19, paragraph 23), order in Case C-116/00 Laguillaumie (cited in footnote 19, paragraph 14) and order in Case C‑190/02 Viacom I (cited in footnote 2, paragraph 14). 23 – With regard to the detailed requirements see paragraphs 19 and 20 of the order in Case C‑190/02 Viacom I (cited in footnote 2). 24 – See points 15 and 16 of this Opinion. 25 – Decision No 35/2001 with a Regulation on the levying of the charge for putting up advertising material (Regolamento per l’applicazione del canone per l’istallazione di mezzi pubblicitari) and Decision No 36/2001 with a Regulation on the levying of the duty and on the performance of the public bill-posting service (Regolamento per l’applicazione del diritto e per l’effettuazione del servizio delle pubbliche affissioni). 26 – Article 39 of the regulation annexed to Decision No 36/2001 of the Municipality of Genoa of 26 March 2001 sets 1 January 2001 as the date of its entry into force and provides for the repeal of the regulation of 1998 on the same date. However, legal relationships relating to the rules on duties for periods prior to 1 January 2001 are expressly unaffected by the repeal of that regulation. Similarly, Article 19 of the regulation annexed to Decision No 35/2001 of the Municipality of Genoa of 26 March 2001 sets 1 January 2001 as the date of its entry into force. 27 – See point 37 of this Opinion. The parties to the main proceedings and the Commission also provided some supplementary information in their written and oral observations. 28 – Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 29 – Order in Case C-190/02 Viacom I (cited in footnote 2, paragraphs 21 and 22). 30 – This is suggested by the Commission in its written observations. In this connection, it also refers to the case-law of Italian administrative courts, in particular Judgment No 1490 of the Tribunale Amministrativo Regionale per la Lombardia (TAR Lombardia-Milano) of 17 April 2002, under which the purpose of the municipal bill-posting service is to ensure the effective exercise of the constitutionally guaranteed fundamental right of freedom of opinion. 31 – See, inter alia, the Commission’s statements in its Decision of 14 September 2001 in merger control procedure COMP/M.2529 – JCD/RCS/Publitransport/IGP (paragraph 10). 32 – On the contrary, in its written and oral observations, the Commission, for example, refers to various decisions by competition authorities from which it can be concluded that there is effective competition in the field of advertising by means of bill-posting in Italy. These decisions are the abovementioned Commission Decision of 14 September 2001 (see footnote 31, in particular paragraph 15) and the decisions of the Italian Autorità Garante della Concorrenza e del Mercato No 7781 (C3738) of 2 December 1999, No 8019 (C3843) of 10 February 2000, No 8463 (C4047) of 6 July 2000, No 11442 (C5428) of 27 November 2002 and No 12561 (I583) of 30 October 2003. 33 – It is possible to infer from the order for reference only that the Municipality of Genoa provides its bill-posting service with inter alia ‘management, technical services, manual staff, technical facilities and installations etc. It thus has at its disposal a very similar organisational structure to that available to private firms competing in the sector’. The municipal bill-posting service is said to be performed by the municipality under a specific allocation of financial and material resources, which bears no relation to its institutional functions, but to the exercise of a profit-making, commercial activity. 34 – In the view of Viacom, as expressed in its written and oral observations, it is a service without any notable autonomy and without its own budget. 35 – Case C-262/02 Commission v France [2004] ECR I-0000, paragraph 22, and Case C-429/02 Bacardi France [2004] ECR I-0000, paragraph 31. 36 – Similarly, for example, see Case 15/78 Koestler [1978] ECR 1971, paragraph 3, in relation to banking services. 37 – See Case C-55/98 Vestergaard [1999] ECR I-7641, paragraphs 16 and 17, and Case C-289/02 AMOK [2003] ECR I-0000, paragraphs 25 and 26. 38 – This is the situation, for example, in Case C-49/89 Corsica Ferries France [1989] ECR 4441, paragraph 7, Case C-381/93 Commission v France [1994] ECR I-5145, paragraphs 17 to 21, Case C-17/00 De Coster [2001] ECR I-9445, paragraphs 30 to 35, and Case C-451/99 Cura Anlagen [2002] ECR I-3193, paragraphs 65 to 69. 39 – Under Article 19(1) of Decreto legislativo 507/93, if the municipal bill-posting service is used, ‘a duty is payable … inclusive of advertising tax, to the municipality which performs the service’ (emphasis added). 40 – With regard to the related problem of taxation of goods (Article 90 EC), see Case 193/85 Co-Frutta [1987] ECR 2085, paragraph 10 et seq., and Case C-72/03 Carbonati Apuani [2004] ECR I-0000, paragraph 17. See also Case C-387/01 Weigel [2004] ECR I-0000, end of paragraph 55. 41 – See also Case C-266/96 Corsica Ferries France [1998] ECR I-3949, paragraph 56, Case C‑205/99 Analir and Others [2001] ECR I-1271, paragraph 21, and Joined Cases C-430/99 and C-431/99 Sea-Land Service [2002] ECR I-5235, paragraph 32. Similarly, Case C-262/02 Commission v France (paragraph 22) and Case C-429/02 Bacardi France (paragraph 31), both cited in footnote 35. 42 – See, inter alia, Case C-266/96 Corsica Ferries France (paragraphs 3, 4 and 60) and Joined Cases C-430/99 and C-431/99 Sea-Land Service (paragraphs 38 and 42), cited in footnote 41, and point 25 of my Opinion of 22 June 2004 in Case C-189/03 Commission v Netherlands [2004] ECR I-0000. 43 – The judgments cited in footnote 38 all concern discriminatory duties. 44 – Case C-17/00 De Coster [2001] ECR I-9445, paragraphs 26, 29, 37 and 38. However, the duty in that case was also discriminatory (see paragraphs 31 to 35 of the judgment). 45 – Naturally this applies only subject to the limits that follow from Title VII of the EC Treaty on economic and monetary policy. 46 – Judgment cited in footnote 40. 47 – Case C-387/01 Weigel (cited in footnote 40, paragraph 55; the non-discriminatory character of the duty is in any case clarified in paragraph 53 of the judgment); see also point 36 of the Opinion of Advocate General Tizzano of 3 July 2003 in the same case. 48 – With regard to the absence of discrimination see also point 57 of this Opinion. 49 – With reference to the case-law of the Italian administrative courts (Tribunale Amministrativo Regionale per la Toscana – TAR Toscana-Firenze, Judgment No 456 of 11 March 2002), the Commission states in its written observations that this tax was of no great consequence (‘di ammontare molto modesto’). 50 – See points 51 and 52 of this Opinion. 51 – Joined Cases C-264/01, C-306/01, C-354/01 and C-355/01 AOK Bundesverband and Others [2004] ECR I-0000, paragraph 46, Case C-218/00 Cisal [2002] ECR I-691, paragraph 22, and Case C-41/90 Höfner and Elser [1991] ECR I-1979, paragraph 21. 52 – Case 118/85 Commission v Italy [1987] ECR 2599, paragraph 7, and Case C-343/95 Calì [1997] ECR I-1547, paragraphs 16 and 18. A similar distinction between municipalities’ activity as undertakings and as public authorities is also suggested in the Case 30/87 Bodson [1988] ECR 2479, paragraph 18. 53 – Unlike in Case C-340/99 TNT Traco [2001] ECR I-4109 (see in particular paragraph 47), the municipal advertising tax is not remuneration payable to the municipality for services which it has not itself supplied. 54 – As the Commission states in its written observations, with reference to the case-law of the Italian administrative courts (Tribunale Amministrativo Regionale per la Toscana – TAR Toscana-Firenze, Judgments No 456 and 457 of 11 March 2002). 55 – Case C-343/95 Calì (cited in footnote 52, paragraphs 16, 18 and 23). 56 – The word ‘service’ (Italian: ‘servizio’) is even expressly used in Article 19(1) of Decreto legislativo 507/93. 57 – As is clear from the observations submitted to the Court of Justice, the municipal bill-posting service is also available not least to associations and social institutions for their public notices. It therefore seems reasonable to suggest that the activity of the municipal bill-posting service constitutes – at least in part – services of general economic interest. However, this does not affect the economic character of this activity under the rules on competition and thus acceptance as an undertaking. The nature of the services may possibly be relevant in a second step under Articles 16 EC and 86(2) EC. 58 – Both an excessively high charge and an excessively low charge could possibly have a detrimental effect on customers. In the first case, customers would have to pay excessively high prices to the municipality, whilst in the second case competition could be distorted and private suppliers could be foreclosed from the market, resulting, ultimately, in too little choice for customers. 59 – The order for reference does not contain any information on the level of the charge for using the municipal bill-posting service in the Municipality of Genoa. The parties have not supplied any supplementary information in this respect either, even though the Court has expressly requested them to do so. 60 – In this respect the present case differs from Case C-242/95 GT-Link [1997] ECR I-4449, paragraphs 14 and 41, which focused, amongst other things, on the exemption of public undertakings from duties that others were required to pay. 61 – Viacom and Giotto also made similar claims with regard to freedom to provide services (Article 49 EC). 62 – The parties are ultimately drawing a parallel with the situation in Case C-18/88 RTT v GB-Inno-BM [1991] ECR I-5941, paragraphs 25 and 26. 63 – In the hearing before the Court, Viacom’s representative also made reference to the situations in Case C-340/99 TNT Traco (cited in footnote 53) and Case C-260/89 ERT [1991] ECR I-2925. 64 – Case C-96/94 Centro Servizi Spediporto Srl [1995] ECR I-2883, paragraph 20, Case 231/83 Cullet v Leclerc [1985] ECR 305, paragraph 16, Case 229/83 Leclerc v Thouars [1985] ECR 1, paragraph 14, and Case C-41/90 Höfner and Elser (cited in footnote 51, paragraphs 26 to 29). 65 – In the proceedings before the Court, Viacom and Giotto claimed that the Municipality of Genoa had earmarked around 17 000 m2 of bill-posting space for private suppliers, but around 24 000 m2 for its own bill-posting service. However, as Viacom’s representative himself acknowledged in the hearing, some of the space allocated to the municipal bill-posting service is reserved for official notices and notices in the public interest. 66 – Case 229/83 Leclerc v Thouars (cited in footnote 64, paragraph 14), Case 231/83 Cullet v Leclerc (cited in footnote 64, paragraph 16) and Case C-41/90 Höfner and Elser (cited in footnote 51, paragraphs 26 to 29). 67 – Joined Cases C-34/01 to C-38/01 Enirisorse and Others [2003] ECR I-0000, paragraphs 48 to 52, and points 72 to 84 of the Opinion delivered by Advocate General Stix-Hackl on 7 November 2002 in the same case. 68 – Viacom’s representative himself made a statement to that effect at the hearing. 69 – There might be an obligation to ensure that financial relations between the municipality and its municipal bill-posting service are transparent under Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (OJ L 195, p. 35, last amended by Commission Directive 2000/52/EC of 26 July 2000, OJ L 193, p. 75), albeit subject to the exceptions laid down in Article 4(1) of that directive. 70 – Case C-260/89 ERT (cited in footnote 63, paragraphs 35 to 37), Case C-41/90 Höfner and Elser (cited in footnote 51, paragraphs 27 to 31), Case C-242/95 GT-Link (cited in footnote 60, paragraphs 33 to 35), Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraphs 17 to 19, Case C-55/96 Job Centre [1997] ECR I-7119, paragraphs 28 to 31, Case C‑163/96 Raso and Others [1998] ECR I-533, paragraphs 27 to 31, Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraphs 61 and 62, Joined Cases C-180/98 to C-184/98 Pavel Pavlov and Others [2000] ECR I-6451, paragraphs 127 and 128, Case C-340/99 TNT Traco (cited in footnote 53, paragraph 44), Case C-475/99 Ambulanz Glöckner (cited in footnote 14, paragraphs 39 and 40) and Case C-462/99 Connect Austria [2003] ECR I-5197, paragraphs 80 to 84. 71 – See also Advocate General Stix-Hackl in points 72 to 84 of her Opinion in Joined Cases C‑34/01 to C-38/01 Enirisorse (cited in footnote 67). 72 – See also Joined Cases C-34/01 to C-38/01 Enirisorse and Others (cited in footnote 67, paragraphs 48 to 52) and the Opinion of Advocate General Stix-Hackl in that case (cited in footnote 67, points 72 to 84). 73 – See points 51 and 52 of this Opinion. 74 – Case C-379/98 PreussenElektra (cited in footnote 11, paragraphs 58, 59 and 61). 75 – See also point 86 and footnote 69 of this Opinion. 76 – See in particular the judgment of 21 October 2003 in Joined Cases C-261/01 and C-262/01 Van Calster and Cleeren [2003] ECR I-0000, paragraph 49, and Joined Cases C-34/01 to C-38/01 Enirisorse and Others (cited in footnote 67, paragraphs 43 to 45). There is a comprehensive reappraisal of the problem in point 32 et seq. of the Opinion delivered by Advocate General Geelhoed on 4 March 2004 in Joined Cases C-174/02 and C-175/02 Streekgewest Westelijk Noord-Brabant and Others [2004] ECR I-0000. 77 – See also point 34 et seq. of the Opinion delivered by Advocate General Geelhoed in Joined Cases C-174/02 and C-175/02 Streekgewest Westelijk Noord-Brabant and Others (cited in footnote 76). 78 – See point 74 of this Opinion. 79 – See points 94 to 98 of this Opinion. 80 – See Case C-379/98 PreussenElektra (cited in footnote 11, paragraphs 58, 59 and 61). 81 – The judgment in Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraphs 84 et seq.) essentially rejects the existence of aid – albeit in a somewhat different situation – where there is an appropriate consideration for a service provided.