College van Burgemeester en Wethouders van de gemeente Amersfoort v X BV and Visser Vastgoed Beleggingen BV v Raad van de gemeente Appingedam.
Date: 2018-01-30
55


First, it should be noted that, in accordance with settled case-law of the Court, the fact that the referring court has limited its questions to the interpretation of certain provisions of EU law does not prevent the Court from providing it with all the elements of interpretation of EU law which may be of assistance to it in adjudicating on the case before it (see, to that effect, judgment of 14 November 2017, Lounes, C‑165/16, EU:C:2017:862, paragraph 28 and the case-law cited).
56


Moreover, the Court, which is called on to provide answers that are of use to the referring court, may provide guidance based on the documents relating to the main proceedings and on the written and oral observations which have been submitted to it (judgment of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 55 and the case-law cited).
64


In that regard, it must be recalled that the administrative charges which Member States may impose, under Article 12 of the Authorisation Directive, on undertakings providing a service or a network under a general authorisation or to which a right of use has been granted, in order to finance NRA activities, must be exclusively intended to cover the overall administrative costs relating to the activities mentioned in Article 12(1)(a) of that directive (judgment of 28 July 2016, Autorità per le Garanzie nelle Comunicazioni, C‑240/15, EU:C:2016:608, paragraph 45 and the case-law cited).
66


It must, however, be stated that Article 12 of the Authorisation Directive is not the only provision of that directive relating to financial payments that Member States may require from undertakings providing electronic communications networks or services within the context of that directive (see, to that effect, judgment of 17 December 2015, Proximus, C‑454/13, EU:C:2015:819, paragraphs 19 to 24 and the case-law cited).
68


The Court’s case-law relating to Article 13 of the Authorisation Directive indicates that the terms ‘facilities’ and ‘install’, used in that provision, refer to the physical infrastructure enabling provision of electronic communications networks and services and to their physical installation on the public or private property concerned (judgment of 6 October 2015, Base Company, C‑346/13, EU:C:2015:649, paragraph 21 and the case-law cited).
79


In any event, as follows from the Court’s settled case-law, Member States may not, within the framework of the Authorisation Directive, levy any fees or charges in relation to the provision of networks and electronic communication services other than those provided for by that directive (judgment of 4 September 2014, Belgacom and Mobistar, C‑256/13 and C‑264/13, EU:C:2014:2149, paragraph 30 and the case-law cited). The provisions of that directive must therefore govern the determination of the financial payments that the competent national authorities may, or may not, levy on the supply of such networks and services.
85


It is apparent from the request for a preliminary ruling that the uncertainty of the referring court in that regard is mainly due to the fact that the Court held, in the judgment of 26 May 2005, Burmanjer and Others (C‑20/03, EU:C:2005:307, paragraphs 33 to 35), that national rules on itinerant selling concerning the conditions laid down for the marketing of a certain type of goods were subject to the provisions of the FEU Treaty governing the free movement of goods and not those relating to the freedom to provide services.
91


That being the case, it must be held that the activity of retail trade in goods such as shoes and clothing falls within the scope of the concept of ‘service’ within the meaning of Article 4(1) of that directive.
96


In addition, if a national measure were to be examined simultaneously in the light of the provisions of Directive 2006/123 and those of the FEU Treaty, in circumstances where it would prove impossible to determine whether the perspective of freedom to provide services prevails over that of other fundamental freedoms, that would be tantamount to introducing case-by-case examination, as a matter of primary law, and would thereby undermine the targeted harmonisation effected by that directive (see, to that effect, judgment of 16 June 2015, Rina Services and Others, C‑593/13, EU:C:2015:399, paragraphs 37 and 38).
97


In the light of the foregoing, the answer to the first question is that Article 4(1) of Directive 2006/123 must be interpreted as meaning that the activity of retail trade in goods constitutes a ‘service’ for the purposes of that directive.
104


In that regard, it must be observed that Directive 2006/123, as is apparent from Article 1 thereof, read together with recitals 2 and 5, lays down general provisions that are intended to remove restrictions on the freedom of establishment for service providers in Member States and on the free movement of services between the Member States, in order to contribute to the completion of a free and competitive internal market (judgment of 1 October 2015, Trijber and Harmsen, C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 44).
107


Consequently, to ensure that the effet utile of the specific legal framework that the EU legislature intended to establish in adopting Directive 2006/123 is not undermined, it must be accepted, contrary to what was argued by the German government at the hearing, that the scope of that directive is capable of extending, in certain cases, beyond what is strictly laid down in the provisions of the FEU Treaty relating to freedom of establishment and the free movement of services, without prejudice to the obligation on the Member States, under Article 3(3) of that directive, to apply the provisions of that directive in compliance with the rules of the FEU Treaty (see, to that effect, judgment of 16 June 2015, Rina Services and Others, C‑593/13, EU:C:2015:399, paragraphs 39 and 40).
110


In the light of the foregoing, the answer to the fourth question is that the provisions of Chapter III of Directive 2006/123, on freedom of establishment of providers, must be interpreted as meaning that they also apply to a situation where all the relevant elements are confined to a single Member State.
119


As regards the concept of ‘requirement’, that must be understood, in accordance with Article 4(7) of that directive, as covering, inter alia, ‘any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States’.
125


The case-law stemming from the judgment of 8 May 2013, Libert and Others (C‑197/11 and C‑203/11, EU:C:2013:288, paragraphs 103 to 107), mentioned in the order for reference, does not preclude that conclusion. After the Court had referred, in paragraph 104 of that judgment, to recital 9 of Directive 2006/123, the Court stated, in paragraphs 105 and 106 of that judgment, that the services concerned by the national measure at issue were expressly covered by the exclusion, in Article 2(2)(j) of that directive, of social services relating to social housing, and therefore held, in paragraph 107 of that judgment, that Directive 2006/123 was not applicable to that measure.
129


Nonetheless, it must be borne in mind that each Member State is obliged, pursuant to the first sentence of Article 15(1) of Directive 2006/123, to examine whether, under their legal system, one or more of the requirements listed in Article 15(2) of that directive are imposed and, if so, to ensure that such requirements are compatible with the conditions of non-discrimination, necessity and proportionality laid down in Article 15(3) of that directive. Pursuant to the second sentence of Article 15(1) of that directive, the Member States must adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions.
137


In the light of the answers given to the preceding questions, there is no need to answer the sixth question, which the referring court asked in the alternative, in the event that Directive 2006/123 was not applicable to the main proceedings.