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Reports of Cases Report s of C ases OPINION OF ADVOCATE GENERAL SZPUNAR 1 delivered on 18 May 2017 Joined Cases C-360/15 and C-31/16 College van Burgemeester en Wethouders van de gemeente Amersfoort v X BV (Request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands)) (Directive 2006/123/EC – Scope – Article 2(2)(c) – Article 2(3) – Activities related to the provision of electronic networks – Directive 2002/20 – Article 13) and Visser Vastgoed Beleggingen BV v Raad van de gemeente Appingedam (Request for a preliminary ruling from the Raad van State (Council of State, Netherlands)) (Directive 2006/123/EC – Establishment of Service Providers – Scope – Recital 9 – Article 4(1) – Concept of ‘service’ – Retail – Municipal zoning plan – Article 15(2)(a) – Territorial restriction – Article 15(3) – Protection of the urban environment) Table of contents I. Introduction ..................................................................................... 3 II. Legal framework ................................................................................. 5 A. EU law ....................................................................................... 5 1. Directive 2006/123 on services in the internal market ....................................... 5 2. EU law on administrative fees in relation to the installation of electronic communications networks .................................................................................. 7 B. Netherlands law ............................................................................... 8 1 Original language: English. EN ECLI:EU:C:2017:397 1 OPINION OF MR SZPUNAR – JOINED CASES C-360/15 AND C-31/16 X AND VISSER 1. Selected provisions of the Netherlands telecommunications code ............................. 8 2. ‘Leges’ in the Commune of Amersfoort ..................................................... 9 3. Provisions governing zoning maps in the Netherlands and the Commune of Appingedam ..... 9 III. The actions in the main proceedings and the questions referred for a preliminary ruling ............ 10 A.C-360/15,X .................................................................................. 10 B. C-31/16, Visser ............................................................................... 11 IV. The procedure before the Court .................................................................. 12 V. Analysis ......................................................................................... 12 A.Case C-360/15,X ............................................................................. 12 1. On the scope of Directive 2006/123 (Questions 1 to 3) ...................................... 12 (a) Article 2 of Directive 2006/123 (Question 1) ........................................... 12 1) On Article 2(2)(c) of Directive 2006/123 ........................................... 13 2) On Article 2(3) of Directive 2006/123 .............................................. 16 (b) On recital 9 of Directive 2006/123 (Question 3) ........................................ 16 (c) On purely internal situations (Question 2) ............................................. 16 2. Questions 4 and 5 ......................................................................... 17 B. Case C-31/16, Visser .......................................................................... 17 1. On Article 4(1) of Directive 2006/123 (Question 1) .......................................... 17 (a) Self-employed economic activity… provided for remuneration ........................... 17 (b) … as referred to in Article 57 TFEU ................................................... 18 (c) Restrictive interpretation because of primary law? ...................................... 19 1) Freedom of establishment ......................................................... 20 2) Free movement of goods .......................................................... 20 i) Searching for a centre of gravity ............................................... 21 ii) Applying simultaneously ...................................................... 21 iii) Applying successively ......................................................... 22 3) Case Rina Services and Others ..................................................... 22 (d) Further considerations ................................................................ 23 (e) Conclusion ........................................................................... 24 2 ECLI:EU:C:2017:397 OPINION OF MR SZPUNAR – JOINED CASES C-360/15 AND C-31/16 X AND VISSER 2. On purely internal situations (Question 4) .................................................. 24 3. On possible cross-border elements (Question 3) ............................................. 27 4. Zoning plan under Directive 2006/123 (Questions 2 and 5) .................................. 27 (a) On authorisations ..................................................................... 27 (b) On requirements ...................................................................... 28 (c) On recital 9 of Directive 2006/123 ..................................................... 28 (d) On Article 14(5) of Directive 2006/123 ................................................. 29 (e) On Article 15 of Directive 2006/123 ................................................... 30 5. On Articles 34 and 49 TFEU (Question 6) .................................................. 31 VI.Conclusion ...................................................................................... 31 I. Introduction 1. The internal market with its fundamental freedoms not only constitutes the historical legal cornerstone of the Treaties and their central organisational principle, but has also, since the outset of the integration process, been characterised by its dynamism. It is one of the stated aims of the Union 2 and stands prominently in the FEU Treaty in Title I of Part Three. Legally defined since the Single European Act as ‘an area in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’, 3 it aims to provide for a free flow of products and factors of production within the Union, against the background of the economic concept of comparative advantage. 4 2. While I would not want to go so far as asserting that the internal market is a ‘living instrument’, 5 it can nevertheless be stated that, even more than most other policy areas of the Union, the law of the internal market constitutes a moving target. It is situated between two tectonic plates: on the one ’ hand, the market freedoms, and, on the other, the Member States desire to regulate interests of a non-economic kind, those interests being such as to differ from national polity to national polity. The founding fathers of the Treaties were not blind: by opting for a horizontal policy area which cross-cuts 6 and has implications for virtually any other (national) policy area, this dynamism with its corresponding disruptive elements is part of the internal market’s DNA. 2 See Article 3(3) TEU. 3 See Article 26(2) TFEU. 4 See Müller-Graff, P.-Chr., ‘Die Verfassungsziele der Europäischen Union’, point 113, in Dauses, M.A., Handbuch des EU-Wirtschaftsrechts, Band 1, EL 31, C. H. Beck, Munich, 2016. 5 Not least, because I would not want to be accused of plagiarism by the European Court of Human Rights which, as is well known, uses this terminology when it comes to interpreting the ECHR since its judgment of 25 April 1978, Tyrer v. The United Kingdom, ECLI:CE:ECHR:1978:0425JUD000585672, § 31. 6 Indeed, any policy area recognised as justification to a restriction, be it explicitly mentioned in the FEU Treaty or as developed by the Court of Justice in the form of a ‘mandatory requirement’ (or ‘imperative requirement’ or ‘overriding reason relating to the public interest’). ECLI:EU:C:2017:397 3 OPINION OF MR SZPUNAR – JOINED CASES C-360/15 AND C-31/16 X AND VISSER 3. The Court has, over the years, kept abreast of this dynamism and has done so in different ways: at times it has fuelled it, 7 at other times it has moderated it. 8 But it always interpreted the Treaty provisions in a way which reflected the economic and social reality of the day (of a judgment). 9 4. Traditionally, the bulk of the Court’s case-law has occurred in the context of free movement of goods and it is here that most concepts have their origin. Examples include many findings referred to already above, such as the finding, in principle, 10 that the freedoms are directed at the Member States, and that they do not apply in purely internal situations. 11 When assessing national measures which potentially violate more than one Treaty freedom, a tendency can be found to deal with such cases ‘ ’ under the heading of goods . Establishment and services for a long time were overshadowed by this case-law. Yet, they gained ground over the years, leading, too, to a substantive body of case-law, be it in the case of direct application of these freedoms in the context of preliminary references or through infringement procedures against the Member States concerned. 5. The EU legislature considered that such a case-by-case approach was not enough to genuinely remove barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services between Member States and to guarantee recipients and providers the legal 12 certainty necessary for the exercise in practice of these two fundamental freedoms of the FEU Treaty. 13 Accordingly, Directive 2006/123/EC was
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