François De Coster v Collège des bourgmestre et échevins de Watermael-Boitsfort.
Date: 2001-11-29
10 It is settled case-law that in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC, which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96 Dorsch Consult [1997] ECR I-4961, paragraph 23 and the caselaw cited therein, and Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 33).
14 Regarding the requirement that the procedure be inter partes, it must first be noted that that is not an absolute criterion (Dorsch Consult, paragraph 31, and Gabalfrisa, paragraph 37, both cited above).
17 As to the criteria of independence and impartiality, it must be noted that there is no reason to consider that the Collège juridictionnel does not satisfy such requirements.
18 First, as is clear from Article 83d(2) of the Law of 12 January 1989, it is the Conseil de la Région de Bruxelles-Capitale that appoints the members of the Collège juridictionnel and not the municipal authorities whose tax decisions the Collège juridictionnel is, as in the main proceedings, required to examine.
19 Secondly, it is apparent inter alia from the Belgian Government's answers to the questions put to it by the Court that members of the Collège juridictionnel may not be members of a municipal council or of the staff of a municipal authority.
20 Thirdly, Articles 22 to 25 of the Royal Decree of 17 September 1987 establish procedure for challenging appointment which is applicable to the members of the Collège juridictionnel by virtue of Article 83d(2) of the Law of 12 January 1989, and which is to be based on reasons essentially identical to those which apply in the case of members of the judiciary.
21 Finally, it appears from the explanations provided by the Belgian Government at the request of the Court that appointments of members of the Collège juridictionnel are for an unlimited period of time and cannot be revoked.
23 When addressing that question, it must be borne in mind that in proceedings brought under Article 234 EC the Court does not have jurisdiction to rule on the compatibility of a national measure with Community law. However, it does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it (see especially Joined Cases C-37/96 and C-38/96 Sodiprem and Others [1998] ECR I-2039, paragraph 22).
25 In order to reply to the question as thus reformulated, it must be observed that although, as Community law stands at present, direct taxation does not as such fall within the purview of the Community, the powers retained by the Member States must nevertheless be exercised consistently with Community law (see, in particular, Case C-118/96 Safir [1998] ECR I-1897, paragraph 21).
26 In the context of freedom to provide services the Court has also recognised that a national tax measure restricting that freedom may constitute a prohibited measure (see, in particular, Case C-49/89 Corsica Ferries France [1989] ECR 4441, paragraph 9, and Case C-381/93 Commission v France [1994] ECR I-5145, paragraphs 20 to 22).
27 Since the duty to abide by the rules relating to the freedom to provide services applies to the actions of public authorities (Case 36/74 Walrave and Koch [1974] ECR 1405, paragraph 17), it is, in that respect, irrelevant that the tax measure in question was adopted, as in the main proceedings, by a local authority and not by the State itself.
28 Furthermore, it is settled case-law that the transmission, and broadcasting, of television signals comes within the rules of the Treaty relating to the provision of services (see, in particular, Case 155/73 Sacchi [1974] ECR 409, paragraph 6; Case 52/79 Debauve and Others [1980] ECR 833, paragraph 8; Case C-260/89 ERT [1991] ECR I-2925, paragraphs 20 to 25; Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 38; Case C-211/91 Commission v Belgium [1992] ECR I-6757, paragraph 5, and Case C-23/93 TV10 [1994] ECR I-4795, paragraphs 13 and 16).
29 It must also be noted that, according to the case-law of the Court, 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 (see Case C-76/90 Säger [1991] ECR I-4221, paragraph 12; Case C-43/93 Vander Elst [1994] ECR I-3803, paragraph 14).
30 Furthermore, the Court has already held that Article 59 of the Treaty 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 (Commission v France, cited above, paragraph 17, and Safir, cited above, paragraph 23; Case C-158/96 Kohll [1998] ECR I-1931, paragraph 33; Case C-157/99 Smits and Peerbooms [2001] ECR I-5473, paragraph 61).
33 In such circumstances, as the Commission correctly observes, a tax such as that introduced by the tax regulation is liable to dissuade the recipients of the television broadcasting services established in the municipality of Watermael-Boitsfort from seeking access to television programmes broadcast from other Member States, since the reception of such programmes is subject to a charge which does not apply to the reception of programmes coming from broadcasters established in Belgium.