Mobistar SA v Commune de Fléron (C-544/03) and Belgacom Mobile SA v Commune de Schaerbeek (C-545/03).
Date: 2005-09-08
24. It is appropriate to recall that the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see the order in Case C-17/98 Emesa Sugar  [2000] ECR I-665, paragraph 18, and the judgments in Case      C-309/99 Wouters and Others  [2002] ECR I-1577, paragraph 42, and Case C-147/02 Alabaster  [2004] ECR I-3101, paragraph 35).
27. Although, as Community law stands at present, direct taxation does not as such fall within the scope of the Community’s competence, Member States must nevertheless exercise their retained powers consistently with Community law (see Case C-279/93 Schumacker  [1995] ECR I-225, paragraph 21; Case C-436/00 X and Y  [2002] ECR I-10829, paragraph 32, and Case C-9/02 De Lasteyrie du Saillant  [2004] ECR I-2409, paragraph 44).
28. In the field of freedom to provide services the Court has already recognised that 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 (see, to that effect, Case C-17/00 De Coster  [2001] ECR I-9445, paragraphs 26 and 27).
29. According to the Court’s case-law, Article 59 of the Treaty 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 (Case C-43/93 Vander Elst [1994] ECR I-3803, paragraph 14, and De Coster , cited above, paragraph 29).
30. Furthermore, the Court has already held that 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 ( De Coster , cited above, paragraph 30 and the case-law cited, and paragraph 39).
31. By contrast, measures, the only effect of which is to create additional costs in respect of the service in question and which affect in the same way the provision of services between Member States and that within one Member State, do not fall within the scope of Article 59 of the Treaty.
39. According to the Court’s settled case-law, in interpreting a provision of Community law, it is necessary to consider not only its wording but also the context in which it occurs and the objects of the rules of which it is part (see, in particular, Case 292/82 Merck  [1983] ECR 3781, paragraph 12; Case 337/82 St. Nikolaus Brennerei  [1984] ECR 1051, paragraph 10, and Case C-17/03 Vereinigung voor Energie, Milieu en Water and Others  [2005] ECR I-0000, paragraph 41).
41. Directive 96/2 is intended to establish a legislative framework enabling the potential of mobile and personal communications to be exploited by abolishing, as soon as possible, all exclusive and special rights, by removing, for operators of mobile networks, both restrictions on the freedom to operate and develop those networks for the purpose of carrying out the activities authorised by their licences or authorisations and distortions of competition and by allowing those operators control over their costs (see Joined Cases C-396/99 and C-397/99 Commission  v Greece  [2001] ECR I-7577, paragraph 25, and Case C-462/99 Connect Austria  [2003] ECR I-5197, paragraph 96).