R.L. Trijber v College van Burgemeester en Wethouders van Amsterdam and J. Harmsen v Burgemeester van Amsterdam.
Date: 2015-10-01
44. Directive 2006/123, as is clear from Article 1 of the directive in conjunction with recitals 2 and 5 in its preamble, lays down general provisions 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 (see judgment in Femarbel , C‑57/12, EU:C:2013:517, paragraph 31).
46. In order to understand the scope of the exclusion laid down in Article 2(2)(d) of Directive 2006/123, the concept of ‘services in the field of transport’ must be interpreted by reference not only to the wording of that provision, but also to its purpose and general structure, in the context of the scheme laid down by that directive (see, by analogy, judgment in Femarbel , C‑57/12, EU:C:2013:517, paragraph 34).
49. With respect, next, to the purpose and scheme of Article 2(2)(d) of Directive 2006/123, it should be noted that, as is stated in recital 21 in the preamble to that directive, the exclusion of services in the field of transport is intended to cover inter alia urban transport services.
52. Finally, with respect to the scheme set out in Directive 2006/123, it must be recalled that, as is clear from recital 7 in its preamble, that directive establishes a general legal framework which benefits a wide variety of services while taking into account the distinctive features of each type of activity and its system of regulation, as well as other general interest objectives, including consumer protection. It follows that the EU legislature expressly sought to ensure respect for the balance between, on the one hand, the objective of eliminating obstacles to freedom of establishment of service providers and the free movement of services, and, on the other, the need to safeguard the specific characteristics of certain sensitive activities, in particular those linked to consumer protection (see, to that effect, judgment in Femarbel , C‑57/12, EU:C:2013:517, paragraph 39).
54. It is in the light of those clarifications that the national court must verify whether the activity which is the subject of the application for authorisation in the main proceedings falls within the concept of ‘services in the field of transport’, within the meaning of Article 2(2)(d) of Directive 2006/123, and whether, consequently, that activity is excluded from the scope of the directive (see, by analogy, judgment in Femarbel , C‑57/12, EU:C:2013:517, paragraph 40).
55. However, the Court of Justice, which is called on to provide answers 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, in order to enable the national court to give judgment (see, inter alia, judgment in Sokoll-Seebacher , C‑367/12, EU:C:2014:68, paragraph 40).
67. By its third question in Case C‑341/14, the referring court asks, in essence, whether Article 10(2)(c) of Directive 2006/123 must be interpreted as precluding a measure, such as that at issue in the main proceedings, under which the grant of authorisation for the exercise of an activity consisting in the operation of window prostitution businesses by renting rooms out in shifts is subject to the condition that the service provider is able to communicate in a language which is understood by the recipients of those services, in this case prostitutes.
68. In that regard, it should at the outset be noted that the referring court has already stated in its decision that that condition pursues an objective which is covered by the concept of ‘overriding reasons relating to the public interest’ within the meaning of Article 4(8) of Directive 2006/123, namely public order, specifically, in this case, preventing criminal offences being committed against prostitutes, in particular human trafficking, forced prostitution and child prostitution, and that, consequently, that condition is justified by an ‘overriding reason relating to the public interest’ within the meaning of Article 10(2)(b) of that directive.
69. In those circumstances, in order to answer the question raised, it must be examined, as submitted by the Netherlands Government and the European Commission, whether such a condition is proportionate to the ‘public interest objective’ pursued within the meaning of Article 10(2)(c) of Directive 2006/123.
70. In that regard, it should be recalled that, according to settled case-law, a national measure restricting the freedom to provide services which pursues a legitimate objective in the public interest may be allowed only if it is appropriate to ensuring the attainment of that objective and does not go beyond what is necessary to attain the objective pursued (see, to that effect, inter alia, judgment in Las , C‑202/11, EU:C:2013:239, paragraph 23 and the case-law cited).
71. It is ultimately for the national court, which has sole jurisdiction to assess the facts of the dispute in the main proceedings, to determine whether a measure satisfies those requirements. However, pursuant to the case-law cited in paragraph 55 of the present judgment, the Court, which is called on to provide answers 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, in order to enable that court to give judgment.
72. In the present case, as regards, first, the suitability of the measure at issue in the main proceedings for achieving the objective pursued, it should be noted that it is apparent from the evidence provided to the Court that the purpose of the language requirement at issue is, in essence, to strengthen the monitoring of criminal activities related to prostitution by the delegation of part of that monitoring to the operators of prostitution businesses, by giving them the means to identify preventively evidence of the existence of such criminal activities.
73. Such a measure appears to be appropriate for achieving the objective pursued, since, by allowing prostitutes to give the operator of prostitution businesses directly and in person any evidence making it possible to establish the existence of an offence related to prostitution, it is likely to facilitate the performance by the competent national authorities of the necessary checks to ensure compliance with the provisions of national criminal law (see, by analogy, judgment in Commission  v Germany , C‑490/04, EU:C:2007:430, paragraph 71).
74. As regards, secondly, the question of whether the measure at issue goes beyond what is necessary to achieve the objective pursued, it should, first, be noted that that measure merely requires the use of any language that can be understood by the parties concerned, which is less intrusive on the freedom to provide services than a measure which imposes the exclusive use of an official language of the Member State concerned or another specific language (see, by analogy, judgment in Las , C‑202/11, EU:C:2013:239, paragraph 32).
75. Next, it does not appear that the measure at issue in the main proceedings requires a high degree of linguistic knowledge, merely that the parties can understand each other.
76. Finally, there do not appear to be any less restrictive measures capable of securing the legitimate objective of general interest pursued. In particular, as submitted by the Netherlands Government, the intervention of a third party, as suggested by Mr Harmsen, could, given the particularities of the type of activities at issue, be the source of harmful interference in the relationship between the operator and the prostitutes, which it is for the referring court to determine. As for camera checks, they do not necessarily allow for the preventive identification of criminal offences.
77. Consequently, the answer to the third question in Case C‑341/14 is that Article 10(2)(c) of Directive 2006/123 must be interpreted as not precluding a measure, such as that at issue in the main proceedings, under which the grant of authorisation for the exercise of an activity, such as that at issue in the present case, consisting in the operation of window prostitution businesses by renting rooms out in shifts is subject to the condition that the service provider is able to communicate in a language which is understood by the recipients of those services, in this case prostitutes, where that condition is such as to ensure that the legitimate objective of general interest pursued — namely the prevention of criminal offences related to prostitution — is secured, and does not go beyond what is necessary to achieve that objective, which is for the referring court to determine.
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