Case C-813/24, Smartflats: Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 27 November 2024 – Smartflats SA v Région de Bruxelles-Capitale
Date: 2024-11-27
Institutions: Court of Justice
Subjects: Belgium, discretionary power, hotel industry, municipality, national law, provision of services, town planning, trade licence








C_202501406EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/1406


10.3.2025






Request for a preliminary ruling from the Cour d’appel de Bruxelles (Belgium) lodged on 27 November 2024 – Smartflats SA v Région de Bruxelles-Capitale


(Case C-813/24, Smartflats)

(C/2025/1406)
Language of the case: French

Referring court

Cour d’appel de Bruxelles

Parties to the main proceedings


Appellant: Smartflats SA

Respondent: Région de Bruxelles-Capitale

Questions referred







1.


Does Directive 2006/123 of the European Parliament and of the Council of 12 December 2006 on services in the internal market (1) apply to national legislation on land use and town planning, such as Article 98 of the Brussels Town and Country Planning Code (CoBAT), which formally applies in the same way to providers of a service activity within the meaning of that directive and to individuals acting in their private capacity, but which, as interpreted in accordance with the recommendation given in the explanatory ministerial circular of 10 May 2016 concerning the tasks of the Municipality and the Mayor in the implementation of the ordinance of 8 May 2014 on tourist accommodation, that is to say, another set of rules on tourism falling within the scope of that directive, in practice, affects, if not exclusively then at least principally, access to or the exercise of that activity?










2.


If the answer to the first question is in the negative, may or must that national legislation on land use and town planning nevertheless be taken into account in assessing the compatibility with Directive 2006/123 of the abovementioned set of rules on tourism, since the latter includes in Article 5(2) thereof, among the criteria for the grant of prior authorisation, a certificate of compliance with the national legislation on land use and town planning, regard being had, in particular, to precluding conditions for granting authorisation from duplicating requirements or controls which are equivalent or essentially comparable to which the service provider is already subject (Article 10(3) of the directive)?










3.


Does Article 9 of Directive 2006/123 of the European Parliament and of the Council of 12 December 2006 on services in the internal market preclude, from the point of view of the requirement of proportionality, a legal scheme that makes the provision of any accommodation equipped with the fixtures and fittings necessary for sleeping and cooking, and including, where appropriate, hotel-type services for an additional charge, that is offered to tourists for one or more nights, in return for payment, on a regular or occasional basis, subject to a prior declaration and registration, on the principal ground that tourists should be protected and on the subsidiary (and implicit) ground that that scheme protects the urban environment, including, by implication, accommodation?










4.


Does Article 10 of Directive 2006/123 of the European Parliament and of the Council of 12 December 2006 on services in the internal market preclude a legal scheme that makes the provision of any accommodation equipped with the fixtures and fittings necessary for sleeping and cooking, and including, where appropriate, hotel-type services for an additional charge, that is offered to tourists for one or more nights, in return for payment, on a regular or occasional basis, subject to a prior declaration and registration, which involves, inter alia, producing a certificate, issued by the municipality in which the tourist accommodation in question is located, confirming that that accommodation is provided in accordance with the land use and planning regulations and town planning rules in force, given that the national legislation on land use and town planning requires planning permission to be obtained in the event of a change in the use or intended use of immovable property from ‘dwelling’ to ‘hotel establishment’ and that the provision of accommodation in the sense referred to above would be classified as the operation of a hotel establishment, in the light of the way in which the concepts of hotel establishment and tourist accommodation are each defined in the sets of rules at issue?










5.


Does the answer to the previous question differ depending on whether or not the classification of ‘hotel establishment’ is left to the discretion of the municipal authority as provided for in a ministerial circular?










6.


Does Article 13 of Directive 2006/123 of the European Parliament and of the Council of 12 December 2006 on services in the internal market preclude a legal scheme that makes the provision of any accommodation equipped with the fixtures and fittings necessary for sleeping and cooking, and including, where appropriate, hotel-type services for an additional charge, that is offered to tourists for one or more nights, in return for payment, on a regular or occasional basis, subject to a prior declaration and registration, which involves, inter alia, producing a certificate, issued by the municipality in which the tourist accommodation in question is located, confirming that that accommodation is provided in accordance with the land use and planning regulations and town planning rules in force, given that no time limit is set for the issue of that certificate, no specific obligation to state reasons is imposed and no specific means of redress is provided for?










7.


If the condition relating to the production of a certificate of town planning compliance is unlawful under European Union law, does European Union law require the exclusion of that requirement alone or of the entire scheme of prior declaration and registration?






(1)  
            OJ 2006 L 376, p. 36.


ELI: http://data.europa.eu/eli/C/2025/1406/oj
ISSN 1977-091X (electronic edition)