Viacom Outdoor Srl v Giotto Immobilier SARL.
Date: 2005-02-17
22. Nevertheless, according to case-law, if the Court is to be able to give helpful answers to the questions referred to it, it is necessary for the national court to define the factual and legislative context of the questions it asks or, at the very least, to explain the factual circumstances on which those questions are based (order in Viacom I , paragraph 15, and the decisions cited therein).
23. In order to ascertain whether the information supplied by the Giudice di pace satisfies those requirements, the nature and scope of the questions raised have to be taken into consideration.  In so far as the need for precision with regard to the factual and legislative context applies especially in the area of competition, which is characterised by complex factual and legal situations (order in Viacom I , paragraph 22, and the decisions cited there), the first matter to be examined must be whether the order for reference supplies sufficient information to enable the Court to give a helpful reply to the questions concerning the interpretation of Articles 82 EC, 86 EC, 87 EC and 88 EC.
25. In contrast, with regard to the factual context, it must be stated that the order for reference does not provide the information necessary to enable the Court to give a helpful reply to the questions referred concerning the interpretation of Articles 86 EC and 82 EC.
26. It is to be borne in mind that those provisions of the Treaty prohibit, generally, the Member States from enacting or maintaining in force measures permitting public undertakings and those to which they grant special or exclusive rights to abuse a dominant position on the common market or a substantial part of it.
27. As the Advocate General has emphasised in paragraph 44 of her Opinion, the determination of the materially and geographically relevant market, and the calculation of the market shares held by the various undertakings operating on that market, constitute the starting-point of any appraisal of a situation in the light of competition law.
28. In the instant case, the Giudice di pace does no more than give some information about the bill-posting service or the service of making available advertising spaces provided by the municipalities and state that those services are fully interchangeable with those provided by private undertakings.  However, it is not clear from that information that customers using the public bill-posting service are in fact comparable to those who turn to private undertakings, particularly in respect of whether the content of their advertising campaigns is commercial or not and of the budget they allocate to it.  In addition, the order for reference contains no information about the number of operators providing the services in question, or about their respective market shares, even if it would seem that that decision indicates that the geographical area regarded as relevant is limited to the territory of the municipality of Genoa.  However, that determination of the geographically relevant market appears unconvincing when in fact the Giudice di pace bases his arguments concerning the effect on intra-Community trade on the fact that the rules introduced by Legislative Decree No 507/93 extend to all Italian municipalities.  In any case, the factual matters mentioned in the order for reference appear too incomplete to support the conclusion that the municipality of Genoa holds a dominant position on the relevant market.
29. That being so, it is impossible to establish whether in circumstances such as those of the case in the main proceedings the levying of a municipal tax on advertising is contrary to Articles 86 EC and 82 EC.  The questions relating to the interpretation of those articles are therefore inadmissible.
35. According to the Court’s case-law, Article 49 EC requires the elimination of any restriction of the freedom to provide services, even if it applies to national providers of services and to those of other Member States alike, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services.   (see to that effect Case C-262/02 Commission  v France [2004] ECR I-0000, paragraph 22, and Case C-429/02 Bacardi  [2004] ECR I-0000, paragraph 31, and the decisions cited there).
36. Furthermore, it is to be borne in mind that the Court has recognised that a national tax measure restrictive of the freedom to provide services could constitute a prohibited measure, whether it is applied 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 et 27).