Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 18 May 2017(1)

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

II. Legal framework

A. EU law

1. Directive 2006/123 on services in the internal market

2. EU law on administrative fees in relation to the installation of electronic communications networks

B. Netherlands law

1. Selected provisions of the Netherlands telecommunications code

2. ‘Leges’ in the Commune of Amersfoort

3. Provisions governing zoning maps in the Netherlands and the Commune of Appingedam

III. The actions in the main proceedings and the questions referred for a preliminary ruling

A. C-360/15, X

B. C-31/16, Visser

IV. The procedure before the Court

V. Analysis

A. Case C-360/15, X

1. On the scope of Directive 2006/123 (Questions 1 to 3)

(a) Article 2 of Directive 2006/123 (Question 1)

1) On Article 2(2)(c) of Directive 2006/123

2) On Article 2(3) of Directive 2006/123

(b) On recital 9 of Directive 2006/123 (Question 3)

(c) On purely internal situations (Question 2)

2. Questions 4 and 5

B. Case C31/16, Visser

1. On Article 4(1) of Directive 2006/123 (Question 1)

(a) Self-employed economic activity… provided for remuneration

(b) … as referred to in Article 57 TFEU

(c) Restrictive interpretation because of primary law?

1) Freedom of establishment

2) Free movement of goods

i) Searching for a centre of gravity

ii) Applying simultaneously

iii) Applying successively

3) Case Rina Services and Others

(d) Further considerations

(e) Conclusion

2. On purely internal situations (Question 4)

3. On possible cross-border elements (Question 3)

4. Zoning plan under Directive 2006/123 (Questions 2 and 5)

(a) On authorisations

(b) On requirements

(c) On recital 9 of Directive 2006/123

(d) On Article 14(5) of Directive 2006/123

(e) On Article 15 of Directive 2006/123

5. On Articles 34 and 49 TFEU (Question 6)

VI. Conclusion

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 and has implications for virtually any other (national) policy area, (6) this dynamism with its corresponding disruptive elements is part of the internal market’s DNA.

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 certainty necessary for the exercise in practice of these two fundamental freedoms of the FEU Treaty. (12) Accordingly, Directive 2006/123/EC (13) was adopted, following a lengthy process which entailed substantive changes to the initial proposal. (14)

6.        This directive, which had to be transposed by Member States into national law by the end of 2009, (15) has not, as yet, generated an enormous amount of case-law before the Court.(16)

7.        The present two requests for a preliminary ruling from the two highest Netherlands courts (in their respective domains), the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) and the Raad van State (Council of State, Netherlands), raise a number of fundamental questions on Directive 2006/123.

8.        As will be seen in detail in the analysis, my main contention in both cases is that Directive 2006/123 should be interpreted in line with its purported objective and against the background of the accomplishment of the internal market, while taking into account legal and economic reality in the twenty-first century. In doing so, the Court should recognise that the service sector is evolving and that it constitutes an area with a large economic potential. The Court should not be afraid to interpret Directive 2006/123 in the way it has interpreted provisions of the internal market in the past: mindful of the telos, in light of present-day circumstances, and with due respect to Member States’ desire to (continue to) regulate activities of a non‑commercial nature.

II.    Legal framework

A.      EU law

1.      Directive 2006/123 on services in the internal market

9.        Recitals 9 and 33 of Directive 2006/123 read:

‘(9)      This Directive applies only to requirements which affect the access to, or the exercise of, a service activity. Therefore, it does not apply to requirements, such as road traffic rules, rules concerning the development or use of land, town and country planning, building standards as well as administrative penalties imposed for non-compliance with such rules which do not specifically regulate or specifically affect the service activity but have to be respected by providers in the course of carrying out their economic activity in the same way as by individuals acting in their private capacity.

...

(33)      The services covered by this Directive concern a wide variety of ever-changing activities .... The services covered are also services provided both to businesses and to consumers, such as legal or fiscal advice ...; distributive trades; the organisation of trade fairs ...; Those activities may involve services requiring the proximity of provider and recipient, services requiring travel by the recipient or the provider and services which may be provided at a distance, including via the Internet.’

10.      Article 2 of Directive 2006/123 is headed ‘Scope’ and worded as follows:

‘1.      This Directive shall apply to services supplied by providers established in a Member State.

2.      This Directive shall not apply to the following activities:

...

(c)      electronic communications services and networks, and associated facilities and services, with respect to matters covered by Directives 2002/19/EC, (17) 2002/20/EC, (18) 2002/21/EC, (19) 2002/22/EC (20) and 2002/58/EC;

...

3.      This Directive shall not apply to the field of taxation.’

11.      According to Article 3(3) of Directive 2006/123:

‘Member States shall apply the provisions of this Directive in compliance with the rules of the Treaty on the right of establishment and the free movement of services.’

12.      Article 4 of Directive 2006/123 is headed ‘Definitions’ and contains the following provisions:

‘For the purposes of this Directive, the following definitions shall apply:

1)      “service” means any self-employed economic activity, normally provided for remuneration, as referred to in Article 50 of the Treaty;

2)      “provider” means any natural person who is a national of a Member State, or any legal person as referred to in Article 48 of the Treaty and established in a Member State, who offers or provides a service;

...

5)      “establishment” means the actual pursuit of an economic activity, as referred to in Article 43 of the Treaty, by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out;

6)      “authorisation scheme” means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the exercise thereof;

7)      “requirement” means any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States or in consequence of case-law, administrative practice, the rules of professional bodies, or the collective rules of professional associations or other professional organisations, adopted in the exercise of their legal autonomy; rules laid down in collective agreements negotiated by the social partners shall not as such be seen as requirements within the meaning of this Directive;

8)      “overriding reasons relating to the public interest” means reasons recognised as such in the case law of the Court of Justice, including the following grounds: ... the protection of the environment and the urban environment ...’

13.      Article 14 of Directive 2006/123 is headed ‘Prohibited requirements’ and stipulates:

‘Member States shall not make access to, or the exercise of, a service activity in their territory subject to compliance with any of the following:

...

5)      the case-by-case application of an economic test making the granting of authorisation subject to proof of the existence of an economic need or market demand, an assessment of the potential or current economic effects of the activity or an assessment of the appropriateness of the activity in relation to the economic planning objectives set by the competent authority; this prohibition shall not concern planning requirements which do not pursue economic aims but serve overriding reasons relating to the public interest;

…’

14.      Article 15 of the same directive is headed ‘Requirements to be evaluated’ and contains the following provision in paragraph 2:

‘Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:

(a)      quantitative or territorial restrictions, in particular in the form of limits fixed according to population or of a minimum geographical distance between providers;

...’

2.      EU law on administrative fees in relation to the installation of electronic communications networks

15.      Directive 2002/21 defines an ‘electronic communications network’ in Article 2(a) as follows:

‘“electronic communications network” means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed’

16.      Article 11 of that directive is headed ‘Rights of Way’ and contains the following provisions in paragraph 1:

‘Member States shall ensure that when a competent authority considers:

–        an application for the granting of rights to install facilities on, over or under public or private property to an undertaking authorised to provide public communications networks, or

–        an application for the granting of rights to install facilities on, over or under public property to an undertaking authorised to provide electronic communications networks other than to the public,

the competent authority:

–        acts on the basis of simple, efficient, transparent and publicly available procedures, applied without discrimination and without delay, and in any event makes its decision within six months of the application, except in cases of expropriation, and

–        follows the principles of transparency and non-discrimination in attaching conditions to any such rights.

The abovementioned procedures can differ depending on whether the applicant is providing public communications networks or not.’

17.      Directive 2002/20 applies the same definitions as Directive 2002/21. Article 1(2) of Directive 2002/20 provides that the directive applies to ‘authorisations for the provision of electronic communications networks and services’.

18.      Articles 12 and 13 of Directive 2002/20 read as follows:

‘Article 12

Administrative charges

1.      Any administrative charges imposed on undertakings providing a service or a network under the general authorisation or to whom a right of use has been granted shall:

(a)      in total, cover only the administrative costs which will be incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and of specific obligations as referred to in Article 6(2), which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; and

(b)      be imposed upon the individual undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and attendant charges.

2.      Where national regulatory authorities impose administrative charges, they shall publish a yearly overview of their administrative costs and of the total sum of the charges collected. In the light of the difference between the total sum of the charges and the administrative costs, appropriate adjustments shall be made.

Article 13

Fees for rights of use and rights to install facilities

Member States may allow the relevant authority to impose fees for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property which reflect the need to ensure the optimal use of these resources. Member States shall ensure that such fees shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives in Article 8 of [Directive 2002/21].’

B.      Netherlands law

1.      Selected provisions of the Netherlands telecommunications code

19.      Article 5.2, paragraph 1, of the Telecommunicatiewet (Law on Telecommunications) obliges the titleholder or manager of public land to permit the installation and maintenance of cables for the public electronic communications networks.

20.      Article 5.4 of the same law lays down two conditions under which the works on the ground can be executed:

‘1.      The provider of a public electronic communications network who intends carrying out work in or on public land in connection with the installation, maintenance or removal of cables shall only carry out such work if:

a.      it has notified, in writing, the municipal council of the municipality within the territory of which the work is to be carried out of its intention to do so, and

b.      it has obtained the consent of the municipal council regarding the location, timing, and manner of performance of the work concerned.

2.      For reasons of public order, safety, the prevention or limitation of nuisance, the accessibility of land or buildings, or underground planning, the municipal council may attach conditions to the consent decision.

3.      Those conditions may relate only to the following:

a.      the location of the work;

b.      the timing of the work, on the understanding that the permitted time of commencement may, unless there are compelling reasons in the public interest as referred to in paragraph 2, be no later than 12 months after the date of issue of the consent decision;

c.      the manner of performance of the work;

d.      the promotion of shared use of facilities;

e.      the coordination of the proposed work with the managers of other operations on the land.’

2.      ‘Leges’ in the Commune of Amersfoort

21.      Article 1 of the Verordening leges 2010 (2010 Regulation on fees/charges) of the Council of the Municipality of Amersfoort (Reg.nr. 3214976) (‘the Verordening’) provides that ‘leges’ (fees/charges) are charged for all services provided by or on behalf of the Council according to the table of rates attached to the Verordening.

22.      The table attached to the Verordening, under Chapter 19, specifies the rate in respect for the processing of an application to obtain consent regarding the timing, location and manner of performance of the work as referred to in Article 5.4 of the Telecommunicatiewet. The rate differs depending on the length of the cable to be laid.

3.      Provisions governing zoning maps in the Netherlands and the Commune of Appingedam

23.      Article 3.1, paragraph 1, of the Netherlands Wet ruimtelijke ordening (Law on Spatial Planning) of 1 July 2008 attributes to municipal councils the power to draw up zoning maps that designate certain territory of the municipality to specific categories of buildings or buildings used for specific activities. Paragraph 2 of the same Article 3.1 defines that the zoning plan shall have a validity of ten years.

24.      According to Article 3.1.2, paragraph 2.b, of the Besluit ruimtelijke ordening (Decree on Spatial Planning) municipalities may designate certain zones for retailers or hotels cafes and restaurants. It is clear from the explanation of the referring court that the Council of the Municipality of Appingedam made use of this power:

‘The scheme in Article 18(18.1) of the Plan Rules is a so-called retail mix scheme (“brancheringsregeling”). It is a scheme which only permits certain types of retail trade, and not others. Based on the present scheme, apart from a number of subsidiary activities, only bulky goods retail trade is permitted. The scheme does not provide for the possibility of derogation. However, a person may apply for an authorisation (known in the Netherlands as an environmental permit) to deviate from the zoning plan on the basis of Article 2.12(1) of the Wet algemene bepalingen omgevingsrecht (Law establishing general provisions on environmental law). The Raad (Council) included the scheme in the zoning plan with a view to maintaining the viability of the city centre and to prevent vacant premises in the inner city area.’

III. The actions in the main proceedings and the questions referred for a preliminary ruling

A.      C-360/15, X

25.      The firm X BV (‘X’) was commissioned to construct a fibre‑optics network in the municipality of Amersfoort. It obtained the necessary consent of the municipality for undertaking the cable installation work. Subsequently, the municipality presented X with a statement of fees/charges totalling EUR 149 949 linked to the permissions granted.

26.      X challenged the fees/charges before the Rechtbank (District Court) in Utrecht. An appeal was brought against the judgment of that court before the Gerechtshof (Regional Court of Appeal) Arnhem-Leeuwarden, which delivered a judgment on 2 July 2013.

27.      The Municipal Council of Amersfoort brought an appeal against the judgment of the Gerechtshof (Regional Court of Appeal) before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands). As the compatibility of the fees/charges with Directive 2002/20, Directive 2002/21, and Directive 2006/123 was unclear, the Supreme Court decided to stay the proceedings on 5 June 2015 and to refer the following questions to the Court of Justice:

‘(1)      Must Article 2(3) of Directive 2006/123 be interpreted as meaning that that provision applies to the levying of fees/charges (“leges”) by an authority of a Member State in respect of the processing of an application for consent with regard to the timing, location and manner of performance of excavation works associated with the installation of cables for a public electronic communications network?

(2)      Must Chapter III of Directive 2006/123 be interpreted as meaning that it also applies in purely internal situations?

(3)      Must Directive 2006/123, against the background of recital 9 in the preamble thereof, be interpreted as meaning that that directive does not apply to national rules which require the intention to carry out excavation work in connection with the installation, maintenance and removal of cables for a public electronic telecommunications network to be notified to the municipal council, and on the basis of which the latter is not competent to prohibit that work but is, however, competent to impose conditions in respect of the location, timing and manner of performance of the work and of the promotion of shared use of facilities and the coordination of the work with the managers of other constructions works on the land?

(4)      Must Article 4(6) of Directive 2006/123 be interpreted as meaning that that provision applies to a consent decision with regard to the location, timing and manner of performance of excavation work in connection with the installation of cables for a public electronic telecommunications network, without the relevant authority of a Member State being competent to prohibit that work as such?

(5)      (A)      If, given the answers to the foregoing questions, Article 13(2) of Directive 2006/123 is applicable in the present case, does that provision have direct effect?

(B)      If the answer to Question 5(A) is in the affirmative, does Article 13(2) of Directive 2006/123 mean that the costs which may be charged may be calculated on the basis of the estimated costs for all application procedures, or on the basis of the costs of all applications such as the one at issue here, or on the basis of individual applications?

(C)      If the answer to Question 5(A) is in the affirmative, according to which criteria must indirect and fixed costs be allocated to authorisation applications in accordance with Article 13(2) of Directive 2006/123?’

B.      C-31/16, Visser

28.      The Council of Appingedam, by decision of 19 June 2013, adopted a zoning plan which designated an area outside the town centre called the ‘Woonplein’ as a shopping area exclusively for retail trade in bulky goods. The zoning plan specifies that it was, inter alia, adopted ‘with a view to maintaining the viability of the city centre and to prevent vacant premises in the inner city area’. The Woonplein thus accommodates retail establishments for the likes of home furnishings, do-it-yourself articles, building materials, garden items, cycling, equestrian equipment and automotive materials.

29.      Visser Vastgoed Beleggingen BV (‘Visser’), a company which owns commercial surfaces at the Woonplein, would like to rent out shop premises to Bristol BV, which, in turn, wishes to establish a retail outlet for its shoe and clothing discount chain.

30.      Visser challenged the decision establishing the zoning plan of 19 June 2013 before the Chamber for Contentious Administrative Proceedings of the Council of State of the Netherlands, claiming that the zoning plan was incompatible with the provisions of Directive 2006/123. On 13 January 2016, the Chamber decided to stay the proceedings and to refer the following questions to the Court of Justice:

‘(1)      Should the term “service” in Article 4(1) of Directive 2006/123 be interpreted as meaning that retail trade consisting of the sale of goods such as shoes and clothing to consumers is a service to which the provisions of Directive 2006/123 apply under Article 2(1) of that directive?

(2)      The scheme as referred to [in the order for the preliminary reference] seeks to prohibit certain forms of retail trade, such as the sale of shoes and clothing, in areas outside the city centre with a view to maintaining the viability of the city centre and preventing vacant premises in inner city areas.

Does a rule relating to such a scheme, having regard to recital 9 of Directive 2006/123, fall outside the scope of Directive 2006/123, because such rules must be regarded as pertaining to “town and country planning … which do not specifically regulate or specifically affect the service activity but have to be respected by providers in the course of carrying out their economic activity in the same way as by individuals acting in their private capacity”?

(3)      Is it sufficient in order to assume that a cross-border situation exists, that it cannot be excluded that a retail business from another Member State would be able to establish itself locally or that the customers of the retail business could be from another Member State, or should there be actual evidence thereof?

(4)      Is Chapter III (freedom of establishment) of Directive 2006/123 applicable to purely internal situations, or is the assessment of the question of whether that chapter applies governed by the case-law of the Court of Justice concerning Treaty provisions on freedom of establishment and the free movement of services in purely internal situations?

(5a)      Does a scheme as referred to [in the order for the preliminary reference] which is included in a zoning plan fall within the scope of the term “requirement” as referred to in Article 4(7), and Article 14(5), of Directive 2006/123, and not within the scope of the term “authorisation scheme” as referred to in Article 4(6), and Articles 9 and 10 of Directive 2006/123?

(5b)      Do Article 14(5) of Directive 2006/123 – if a scheme as referred to [in the order for the preliminary reference] falls within the scope of the term “requirement” – or Articles 9 and 10 of Directive 2006/123 – if a scheme as referred to [in the order for the preliminary reference] falls within the scope of the term ‘authorisation’ – preclude a municipality from adopting a scheme as referred to [in the order for the preliminary reference]?

(6)      Does a scheme as referred to [in the order for the preliminary reference] fall within the scope of Articles 34 to 36 TFEU, or of Articles 49 to 55 TFEU and, if so, do the exceptions recognised by the Court of Justice apply, provided they are proportionate?’

IV.    The procedure before the Court

31.      The respective orders for reference were received at the Court Registry on 13 July 2015 (Case C‑360/15) and on 18 January 2016 (Case C‑31/16). Written observations were submitted by the parties in the main proceedings, the Netherlands Government and the Commission (in both cases) and by the Czech Government (Case C‑360/15) and the Irish, Italian, German and Polish Governments (Case C‑31/16). By decision of the President of the Court of 23 January 2016, the cases were joined for the purposes of the oral procedure and the judgment.

32.      The parties in the main proceedings, the Netherlands and German Governments and the Commission took part at the hearing, which was held on 14 February 2017.

V.      Analysis

A.      Case C-360/15, X

33.      The first three questions deal with the scope of Directive 2006/123, whereas questions 4 and 5 relate to the substantive provisions of that directive.

1.      On the scope of Directive 2006/123 (Questions 1 to 3)

(a)    Article 2 of Directive 2006/123 (Question 1)

34.      By its first question the referring court seeks to ascertain whether Article 2(3) of Directive 2006/123 is to be interpreted as covering the levying of fees/charges by an authority of a Member State in respect of the processing of an application for consent with regard to the timing, location and manner of performance of excavation works associated with the installation of cables for a public electronic communications network.

35.      The scope of Directive 2006/123 is determined by its Article 2. Article 2(1) stipulates that it applies to services supplied by providers established in a Member State. Article 2(2) excludes a range of activities from the scope of the directive, such as (subparagraph (c)): ‘electronic communications services and networks, and associated facilities and services, with respect to matters covered by Directives 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC and 2002/58/EC’. Article 2(3) then specifies that the directive does not apply to the field of taxation.

36.      I infer from this structure that one should only turn to the examination of Article 2(3) of Directive 2006/123 if the requirements of Article 2(1) are fulfilled, and if the application of the directive is not already precluded by Article 2(2).

37.      The referring court appears to presuppose that the application of the directive is not precluded because of one of the activities listed in Article 2(2) of Directive 2006/123. As I am not, however, entirely convinced by this finding, (21) I shall first examine Article 2(2) before turning to Article 2(3) of the directive.

38.      I will therefore first address the question whether the laying of cables for the purpose of creating a glass-fibre network is a matter which falls within the exception of Article 2(2)(c) of Directive 2006/123.

1)      On Article 2(2)(c) of Directive 2006/123

39.      The EU regulatory framework for telecommunications consists of Directive 2002/21 and four specific directives, one of which is Directive 2002/20. (22)

40.      Directive 2002/21 contains common provisions and sets out the definitions and scope of the regulatory framework that applies to all electronic communications networks, regardless of how data is transmitted. (23)

41.      The aim of Directive 2002/20 is to ensure that only the least onerous authorisation system possible is used to authorise the provision of electronic networks. (24) It replaces and does away with the previous system of individual licenses for network activities with a ‘general authorisation’ that grants certain minimum rights to the network operator. (25)

42.      The installation of a fibre-optics network the purpose of which is to transmit data for electronic communication constitutes an ‘electronic communications network’ within the meaning of Article 2(a) of Directive 2002/21. (26) X’s activities therefore fall within the scope of application of provisions of the EU regulatory framework for telecommunications.

43.      This finding does not, however, as such, imply that the conditions of Article 2(2)(c) of Directive 2006/123 are fulfilled, given that that provision specifically refers to ‘matters covered by’ the directives on electronic communications services and networks. Ergo, we have to continue analysing whether fees/charges such as the ‘leges’ in the main proceedings are, in effect, matters covered by those directives.

44.      Article 12 of Directive 2002/20 limits charges levied by a national regulatory authority. It refers to charges imposed on undertakings providing a service or a network under the general authorisation or to whom a right of use (27) has been granted. It has been held applicable in procedures granting a general authorisation or attributing a right of use. (28) In the context of the present procedure, however, it is not applicable, for there is no general authorisation (29) or right of use involved and, crucially, the Municipality of Amersfoort is not a national regulatory authority. (30)

45.      Article 13 of Directive 2002/20 could be of relevance, however. Its scope of application is certainly broader in that it goes beyond the procedure related to general authorisations.

46.      Pursuant to Article 13 ‘Member States may allow the relevant authority to impose fees for ... rights to install facilities’. (31) Unlike Article 12, it makes no reference to general authorisations or a national regulatory authority. Instead, it mirrors the wording of Article 11(1) of Directive 2002/21 (‘Rights of way’), according to which rights of way may be granted by a ‘competent authority’. (32) This makes sense, as charges introduced by local authorities governing rights of way can be as dissuasive as charges introduced in the course of the procedure of a general authorisation. (33)

47.      Such an interpretation is, moreover, corroborated by the purpose of Directive 2002/20 which is to render market access less onerous. (34) In this context, according to settled case-law, Member States may not, within the framework of Directive 2002/20, levy any charges or fees in relation to the provision of networks and electronic communication services other than those provided for by that directive. (35) It would be inconsistent if the absence of a requirement for a general authorisation by a national regulatory authority could undermine this protection of market access afforded by Directive 2002/20.

48.      The overall objectives of the telecommunications framework (36) support a broad reading of Article 13 of Directive 2002/20. The goal set out in Article 8(2)(a) of Directive 2002/21 is to ensure that users derive maximum benefit in terms of choice, price, and quality. The cost of permits for civil engineering works for electronic networks affects the prices end-users have to pay for access to the network in their region, and whether they can receive access to the network at all. (37) Onerous procedures to install facilities can have a similar effect as obstacles in the form of authorisation schemes. The scope of application of Article 13 of Directive 2002/20 is therefore not limited to the context of a specific general authorisation, but encompasses other fees for installing facilities that are necessary for the market entry of communications providers. (38)

49.      Such an interpretation of Article 13 of Directive 2002/20 is also in line with the Vodafone España and France Telecom España judgment,  (39) where the Court held that Article 13 precluded a regionally imposed tax on the usage of third-party phone pylons. There are obviously substantial differences between the measure in question in the main proceedings and the one at issue in Vodafone España and France Telecom España, but the judgment clarified two important points that are applicable to the current case.

50.      First, the tax at issue inVodafone España and France Telecom Españaincreased the cost of establishment of new providers as opposed to those which already owned infrastructure. (40) Similarly, the charges/fees in the present case raise the cost of the installation of facilities and place providers which do not already own infrastructure in the municipality at a disadvantage to those who do.

51.      Secondly, the tax at issue in that case was charged by a municipality which was not a national regulatory authority. Due to the broader scope of Article 13, and as the municipalities were the competent authorities for approving the installation of facilities, that provision applied in Vodafone España and France Telecom España. The same should apply to the present case.

52.      It should be added that in subsequent cases on the issue of general taxes as opposed to charges on the installation of facilities, the Court found Directive 2002/20 not to be applicable. (41) As regards the measure at issue, however, there can be no doubt that fees/charges were charged for the installation of a facility. In laying cables on private or public ground, X makes use of a right of way in the sense of Article 11 of Directive 2002/21 as transposed by the Netherlands Telecommunications Law. (42) Article 13 of Directive 2002/20 is the specification of this right of way when it comes to the installation of telecommunication facilities, an activity the laying of cables is undoubtedly part of.

53.      The matter is therefore covered by Article 13 of Directive 2002/20, which is why, pursuant to Article 2(2)(c) of Directive 2006/123, the latter directive does not apply to the case at issue.

54.      The question of whether national measures such as the charges/feeslevied in the case of the main proceedings are compatible with Article 13 of Directive 2002/20, a directly-applicable (43) provision which can be relied upon by individuals, requires findings of fact, which should be dealt with by the referring court. Moreover, it is not a subject of the present proceedings.

2)      On Article 2(3) of Directive 2006/123

55.      On a hypothetical basis, for the eventuality that the Court should consider that the requirements of Article 2(2)(c) of Directive 2006/123 are not fulfilled, we shall now examine whether a measure such as the fees/charges pertain to the field of taxation (Article 2(3) of Directive 2006/123).

56.      The term ‘taxation’ is to be interpreted autonomously, in line with settled case-law of the Court, according to which the need for a uniform application of EU law and the principle of equality require the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope normally to be given an independent and uniform interpretation throughout the European Union. (44)

57.      There is an essential difference between a tax that contributes to the general revenue of a public entity and an administrative charge in return for a specific service.

58.      In the present case, even if the competent municipality charged an amount exceeding the cost of the administrative procedure of processing the application for consent with regard to the timing, location and manner of performance of the excavation works, the mere fact that such a possible surplus levied contributes to the general budget of the municipality does not convert the charge into a general tax. The levying of the charge only occurs in the course of the administrative procedure. Entities cannot convert an administrative charge into a tax, and thus escape the application of Directive 2006/123, simply because the amount charged exceeds the costs for handling the administrative procedure. Such an interpretation of Article 2(3) would run counter to the purpose of Article 13(2) of Directive 2006/123, which is to limit charges incurred in the granting of authorisations to service providers.

59.      I therefore take the view that national measures such as the leges of the main proceedings do not constitute a tax since they are levied on the occasion of the municipal service of processing the application for consent with regard to the timing, location and manner of performance of the excavation works.

(b)    On recital 9 of Directive 2006/123 (Question 3)

60.      As, by virtue of Article 2(2)(c) of Directive 2006/123, that directive does not, in my view, apply in a situation such as that of the case at issue, Question 3 on the meaning of recital 9 of the preamble of that directive, in the context of the proceedings of the case before the referring court, is hypothetical and does not need to be answered.

(c)    On purely internal situations (Question 2)

61.      Question 2 deals with purely internal situations under Chapter III of Directive 2006/123. That question also being hypothetical in nature in the context of the present case, I shall (only) deal with it below in C‑31/16, Visser.

2.      Questions 4 and 5

62.      Given that I propose that the Court should hold that Directive 2006/123 is not applicable to a case such as that at issue and that Questions 4 and 5 are referred on the assumption that the directive applies, they are hypothetical. I should, in addition, like to stress that the regime established by Directive 2006/123, when it comes to authorisations and their schemes (Chapter III, Section 1) and (prohibited) requirements (Section 2), is not geared towards the densely-regulated and highly technical area of telecommunications – which is precisely the reason why this area falls, as we have seen above, outside the scope of Directive 2006/123. (45)

B.      Case C‑31/16, Visser

1.      On Article 4(1) of Directive 2006/123 (Question 1)

63.      By its first question, the referring court, in essence, asks the Court whether retail trade consisting of the sale of goods such as shoes and clothing to consumers falls within the scope of Directive 2006/123.

64.      This question is posed by the referring court against the following background: Visser owns commercial premises which it would like to rent out to Bristol BV, a firm wishing to establish a retail outlet for its shoe and clothing discount chain. Bristol BV seeks to rely on Chapter III of the directive, entitled ‘Freedom of establishment for providers’. The question is, therefore, whether Bristol BV is a service provider which can rely on the provisions of Directive 2006/123.

65.      Ultimately, as shall be seen in more detail below, under this seemingly benign question (‘Why should retail not be a service?’) looms the bigger, more delicate issue of the relationship between Directive 2006/123 and the fundamental freedoms, enshrined in the FEU Treaty as well as the issue of the relationship between those fundamental freedoms and possible implications for Directive 2006/123.

66.      While the Government of the Netherlands is of the opinion that in a situation such as that of the case at issue, retail should not be regarded as a service, Visser and the Governments of Italy and Poland as well as the Commission believe it should.

67.      By virtue of Article 2(1) of Directive 2006/123, the directive applies to services supplied by providers established in a Member State.

68.      Article 4(1) of Directive 2006/123 defines ‘service’ as ‘any self-employed economic activity, normally provided for remuneration, as referred to in [Article 57 TFEU]’. (46) Article 57 TFEU, in turn, specifies, in its first paragraph, that ‘[s]ervices shall be considered to be “services” within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons’.

(a)    Self-employed economic activity… provided for remuneration

69.      The first part of the definition of ‘service’ is rather straightforward: the selling of shoes or clothing constitutes a self‑employed economic activity, provided for remuneration.

70.      Recital 33 of the directive (47) explicitly lists distributive trades (48) as one of the activities covered by the directive. (49) Recital 47 of the directive, moreover, mentions, albeit in passing, in the context of authorisation schemes, hypermarkets. Such markets undeniably also have a distributive function as far as goods are concerned. To complete the picture, recital 76 of the directive states that only restrictions applying to goods as such (as opposed to, as I would have it, the distribution of goods) are not concerned by the directive.

71.      In addition to this, the Commission’s non-binding but nevertheless enlightening (50) Handbook on the implementation of the Services Directive, (51) which has, moreover, also been resorted to by the Court in interpreting Directive 2006/123, (52) refers to ‘distributive trades (including retail and wholesale of goods and services)’.

72.      Furthermore, a look at the drafting history of the directive reveals that the European Parliament initially attempted to remove the reference to ‘distributive trades’ during the first reading, (53) presumably with the intention of excluding retail services from the directive. The Council, however, reinstated such a reference in the draft. (54) This reference stayed until the adoption of the directive.

(b)    … as referred to in Article 57 TFEU

73.      But what about the second part of the first paragraph of Article 57  TFEU, as referred to in Article 4(1) of Directive 2006/123 (‘in so far as they [the services] are not governed by the provisions relating to the freedom of movement for goods, capital and persons’)?

74.      This raises the question whether the services at issue – selling of shoes – are not governed by other Treaty freedoms in the sense of Article 57 TFEU, which could mean that they do not fall within the scope of Directive 2006/123.

75.      Under the system of the FEU Treaty, (55) the free movement of persons consists of the two separate freedoms of movement of dependent persons (workers) and independent persons (establishment). Ergo, freedom of establishment comes under the term ‘persons’ in the first paragraph of Article 57 TFEU. (56)

76.      Let us, for a moment, imagine that Bristol BV’s activity was one of establishment. This would imply that its situation would, under the FEU Treaty, be governed by the rules on freedom of establishment (as a sub-category of free movement of persons), which would, in turn, mean that we would not be in the presence of a ‘service’ within the meaning of Article 57 TFEU, which would imply that we are outside the scope of Directive 2006/123. Following such a finding, Chapter III of Directive 2006/123 on freedom of establishment for providers would be deprived of any scope. (57) Unless one considered Chapter III for this reason to be per se contrary to primary law, the conclusion that Chapter III has no scope cannot be accepted.

77.      Accordingly, either the term ‘service activity’ under Chapter III of Directive 2006/123 must have a meaning distinct from the general definition under Article 4 of Directive 2006/123 or Article 4 of Directive 2006/123 is not intended to refer Article 57 TFEU in so far as establishment of providers is concerned. For reasons of clarity, I would opt for the latter approach and hold that the directive applies also to economic activities falling under freedom of establishment within the meaning of the FEU Treaty, but which also include a service element. (58)

78.      On a more general note, the difference in terminology between the FEU Treaty and Directive 2006/123 indicates the different methods employed by the FEU Treaty, on the one hand, and by the directive, on the other, in order to attain the objective of eliminating restrictions on freedom to provide services. The FEU Treaty primarily targets ‘restrictions on freedom to provide services within the Union’. (59) It pursues ‘negative integration’ by prohibiting barriers to trade in services. (60) Directive 2006/123 by contrast lays the emphasis on and specifically targets service activities.As an act of secondary law, it can, with a higher degree of detail, address the problems encountered by service providers when they are faced with obstacles. This is why – in line with its legal basis – (61) it focuses on the activity of service providers and its entire structure is geared towards service activities. (62)

79.      The reference to Article 57 TFEU in Article 4(1) of Directive 2006/123 does not, therefore, have any bearing on the question whether retail is a ‘service’ under Article 4(1) of Directive 2006/123.

80.      Retail should therefore be considered to be a service under Article 4(1) of Directive 2006/123.

(c)    Restrictive interpretation because of primary law?

81.      The question which remains in the context of the interpretation of Article 4(1) of Directive 2006/123 is whether primary law is conducive to a restrictive interpretation of that provision with the effect that retail could not be considered a ‘service’ for the purposes of Directive 2006/123.

82.      My answer to this is ‘no’.

1)      Freedom of establishment

83.      Even under the FEU Treaty (only), (63) Bristol BV’s activity would, in my view, come under freedom of establishment, as I shall now demonstrate by referring to case-law of the Court.

84.      In situations concerning establishment, which involve another fundamental freedom, typically those relating to goods or services, (64) the Court appears to me consistently to apply freedom of establishment pursuant to Article 49 TFEU. (65) I see the underlying reason for such an approach as being that establishment typically and inherently incorporates aspects of other fundamental freedoms almost by definition. To put it schematically: capital is needed for the setting-up; people help to construct and manage, goods need to be transported from A to B. All this to enable a (natural or legal) person to establish itself.

85.      By treating all these matters under ‘establishment’, the Court appears to me to focus on the actual activity of establishment rather than the ultimate finality of such establishment. The Court does not, in such a situation, look at the goods or services to be provided by the established undertaking.

86.      Under such case-law and in the absence of Directive 2006/123, the setting-up of a retail store as in the case at issue in the main proceedings would presumably therefore fall within the freedom of establishment. In such circumstances I do not see how treating the case at issue under Chapter III of the directive on establishment of service providers would be contrary to such case‑law.

2)      Free movement of goods

87.      Given that the case at issue is about establishment, we do not need to pursue the relationship between Directive 2006/123 and primary law any further. In order to forestall any misapprehensions about the relationship between goods and services and in light of questions raised during the oral procedure I do, nevertheless, deem it helpful to pursue this question further within the present Opinion.

88.      At the outset, it should be stressed that the fact that, as a result of the first paragraph of Article 57 TFEU, the freedom to provide services is residual in relation to the other freedoms in no way implies that there is an order of priority between the fundamental freedoms. (66) The Court has made clear that although in the definition of the concept of ‘services’ laid down in the first paragraph of Article 57  TFEU it is specified that services ‘are not governed by the provisions relating to freedom of movement for goods, capital and persons’, that relates to the definition of that concept and does not establish any order of priority between the freedom to provide services and the other fundamental freedoms. Crucially, the Court held that the concept of ‘services’ covers services which are not governed by other freedoms, in order to ensure that all economic activity falls within the scope of the fundamental freedoms. (67) The freedom to provide services is, therefore, not a subsidiary but a residual freedom.

89.      Where cases involve both goods and services, the Court’s case-law varies. Three approaches can be distinguished: examining one freedom only on the basis of a ‘centre of gravity test’, examining both freedoms together, and examining one freedom after another. Let us briefly look at these three approaches in turn.

i)      Searching for a centre of gravity

90.      This is the classical test of default resorted to by the Court. Here, the Court consistently holds that where a national measure affects both the freedom to provide services and the free movement of goods, the Court will, in principle, examine the measure in relation to just one of those two fundamental freedoms if it is clear that, in the circumstances of the case, one of those freedoms is entirely secondary in relation to the other and may be attached to it. (68) In this context, the Court has tended to deal with cases of retail under the free movement of goods. (69) The Court does not, however, deny that there are multiple aspects to one economic activity from the point of view of the fundamental freedoms, even if it has analysed a case solely from the perspective of just one freedom.

91.      For instance, in Burmanjer and Others, (70) the Court held that it could not be excluded that the sale of a product may be accompanied by an activity with ‘services’ aspects. Nonetheless, that fact could not be sufficient, by itself, to classify an economic operation such as itinerant trading as a ‘provision of services’ within the meaning of Article 56 TFEU. Instead, it must be established, in each case, whether that service is or is not wholly secondary in relation to the elements concerning the free movement of goods. (71) Consistent with this approach, cases where the services aspect is very strong, such as in advertisement, (72) were dealt with under the freedom to provide services. (73)

92.      The logic of the centre of gravity test is this: in a situation where the Court is called upon to interpret primary law only, it is natural that it focuses on the predominant fundamental freedom. Why should it carry out the same test for another freedom, only to reach the same result? After all, the fundamental freedoms all have the same objective: to remove barriers to trade within the internal market. Whether a specific situation is caught by, say, Article 49 TFEU only, Article 34 TFEU only, Articles 34 and 56 TFEU or Article 56 TFEU only, is, in the vast majority of cases, not necessarily of crucial importance.

ii)    Applying simultaneously

93.      Both freedoms have been considered by the Court together in a technical case of prior authorisation procedures for the marketing of (mainly) decoders for television signals. (74) The reason for such a simultaneous analysis is surely that, in the provision of digital television services, services and goods are closely interrelated. (75)

iii) Applying successively

94.      Two freedoms have been examined one after another by the Court notably in cases on advertising. (76) It is noticeable that the Court in such cases of successive examination offered no reasons for why it did so. (77) My explanation is that a centre of gravity approach was not evident. I would add that this line of case-law on taking the successive approach is to be seen in the light of the Keck and Mithouardjudgment: (78) by adopting such an approach the Court made clear that measures which could potentially constitute selling arrangements falling outside the scope of the free movement of goods pursuant to Keck and Mithouardcould, in addition, be analysed under another Treaty freedom. (79)

95.      I infer, from the fact that the Court resorts to different approaches, that there are situations in which the ‘centre of gravity’ approach, which is, almost mechanically, about quantity (‘Which freedom has the greatest weight?’), reaches its limits in a situation in which one cannot simply disregard as completely secondary a particular fundamental freedom. That is why, for the present case, I have a preference for the third approach, as, otherwise, the services aspect inherent in retail would not be recognised.

96.      As a consequence, I do not see how, in the case at issue, primary law would restrict an interpretation of Directive 2006/123 on its own terms.

97.      This finding is, moreover, corroborated by the way the Court has thus far interpreted Directive 2006/123, as I should now like to illustrate.

3)      Case Rina Services and Others

98.      Here, the legal findings we can draw from Rina Services and Others (80)are of fundamental importance. The arguably main legal issue of that case was whether a requirement prohibited under Article 14 of Directive 2006/123 (81) could be justified under the FEU Treaty. While the argument was made that Article 14 of Directive 2006/123 could not preclude such a justification because the latter amounted to a provision in primary law, (82) the Court was crystal clear: sitting as the Grand Chamber it ruled that given that Article 14 did not provide for a possibility of justification, there was no such possibility. In this connection the Court specifically addressed Article 3(3) of Directive 2006/123. (83) Referring exclusively to the terms, system and telos of the directive, the Court thus demonstrated considerable deference to choices made by the EU legislature. (84)

99.      For me, the overall rationale underlying the Rina Services and Othersjudgment is that the EU legislature may promote the freedom aspect of the fundamental freedoms at the inevitable expense of their justification aspect. Indeed, it lies in the nature of harmonisation to define, level out and, if considered appropriate by the EU legislature, restrict grounds of justification so as to create a level playing field for economic operators. Put illustratively, in such a situation the ‘winner’ is the EU fundamental freedom, as well as the economic operator intending to rely on this freedom – which is fully in line with the objectives of the FEU Treaty. (85) The legality and legitimacy of such an outcome lies, in my view, in the respect for the legislative procedure provided for by the FEU Treaty.

100. Primary law does not, therefore, have any bearing on the question whether retail is a ‘service’ under Article 4(1) of Directive 2006/123.

(d)    Further considerations

101. I would also like to take the opportunity to place the present case into its wider context.

102. Present day circumstances imply that the activity of retail, though ultimately linked to distributing goods, is a service in its own right and should be recognised as such. In the past (and, in particular, at the time of the Keck and Mithouard judgment (86)) it may have been the primary means of distributing goods. Mail order delivery on the basis of catalogue sales may have existed, but this was certainly marginal. Since then, with the arrival of the internet in virtually every household (and smartphone), retail has faced competition from new directions which has forced it to undergo a profound transformation. Nowadays, to a far greater extent than in the past, retail not only consists of merely selling a product, but also of advising, counselling and offering follow-up services. (87) Under present day conditions it is an activity which is not merely ancillary to a product.

103. As occurs often in the case of new legislation, new questions arise in the course of application of that legal instrument that cannot be answered by merely resorting to the Court’s previous case-law on the four freedoms. This is especially striking in the context of establishment, where the distinction between establishment for the purposes of distributing goods and establishment for the purposes of providing a service was of no relevance under the FEU Treaty provisions. I thus see no reason why previous case-law on the delimitation between the freedom to provide services and the free movement of goods should stand in the way of applying Directive 2006/123 to retailers, as intended by its clear wording. On the contrary, the case-law of the Court hitherto indicates that the distinction between goods and services has always been non-exclusive. The evolution of the service economy, where it becomes normal for the customer to expect a multitude of services when and even after they buy a product, increases the overlap between the two poles, and distributive trades are at the core of this overlap. The legislator chose to include them within the scope of Directive 2006/123 knowing that the activity would further evolve towards offering more services, which is in line with case-law of the Court that always acknowledged the fact that certain activities contain aspects protected by multiple freedoms.

104. To sum up, I do not think that the case-law to date can or should be interpreted in such a way as to exclude the activity of ‘retail’ from the scope of Directive 2006/123.

(e)    Conclusion

105. My conclusion on the first question is therefore that ‘retail’ activity consisting of the sale of goods such as shoes and clothing to consumers falls within the definition of ‘service’ in Article 4(1) of Directive 2006/123.

2.      On purely internal situations (Question 4)

106. By its fourth question in Case C‑31/16, the referring court seeks to establish whether Chapter III of Directive 2006/123, entitled ‘Freedom of establishment for providers’, is applicable in situations the facts of which are confined to a single Member State of the EU.

107. It is not the first time that this question has been referred to the Court of Justice. Indeed, in case Trijber and Harmsen, (88) the Raad van State (Council of State), had already asked the same question.

108. In my Opinion in Trijber and Harmsen, (89) I proposed to answer that question in the affirmative. As I have laid out in detail in that case, a textual, systemic, historical and teleological interpretation of the provisions of Directive 2006/123 points to Chapter III on freedom of establishment for providers applying not only in cross-border, but also in purely internal, situations. (90) While I refer the Court, as to the details of my reasoning, to that Opinion, in summary I considered the following: regarding the wording of the legal bases in the FEU Treaty, there is no difference between ‘coordination’, ‘approximation’ and ‘harmonisation’; harmonisation in the domain of the internal market can cover situations not covered by the fundamental freedoms guaranteed by the FEU Treaty; the provisions of Chapter III of Directive 2006/123 do not make any reference to cross-border activity, whereas those of Chapter IV do, and draft amendments to limit the whole directive to cross-border situations were rejected.

109. I have not had a change of mind on this question since my Opinion in Trijber and Harmsen. (91) In this Opinion I shall therefore limit myself to addressing additional arguments raised in the context of the current procedure as well as to the Court’s case-law on Directive 2006/123.

110. First, the difference in wording between the provisions of Chapter III and those of Chapter IV is crucial: establishment under the directive is supposed to cover all internal service provision (Chapter III). Economic operators should not be discouraged from establishing themselves in a Member State in the first place. For the rest, that is to say temporary provision of services, a cross-border element is inherent. Ergo, Chapter IV necessarily and logically requires the existence of a cross-border element.

111. Secondly, those provisions, (92) or even chapters, (93) of Directive 2006/123 which specifically refer to ‘another Member State’ and thereby to a cross-border situation should be regarded as applying specifically to cross-border situations which in no way prejudge other provisions of the directive applying in purely internal situations.

112. Thirdly, it cannot be said that the legal basis of the directive, that is to say Articles 53 and 62 TFEU, (94) only confers competence for addressing cross-border situations. Indeed, as the Commission stressed during the course of the hearing, the wording of Article 53(2) TFEU according to which, in the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions is dependent upon coordination of the conditions for their exercise in the various Member States, points in the opposite direction.

113. Moreover, Article 53  TFEU has already been resorted to by the EU legislature as a legal basis in situations which went beyond merely cross-border ones. This provision appears to me to be used consistently as the standard (and only) legal basis for harmonisation (95) in the domain of services. In particular, this is the case for the voluminous harmonisation in the sector of financial services. By way of example, I should like to mention the directives on the reorganisation and winding up of credit institutions, (96) on markets in financial instruments (MiFiD) (97) and on the capital adequacy of investment firms and credit institutions. (98) I have not come across a judgment of the Court on any of those directives where, in the context of Article 53  TFEU, an issue was made of the legal basis with respect to purely internal situations. (99)

114. Fourthly, we should examine the judicial practice of the Court. Here, it emerges that the Court interprets the provisions of Chapter III of Directive 2006/123 in situations which are purely internal in nature, without seeking a cross-border element nor resorting to its general case‑law on the admissibility of preliminary references which arise out of purely internal situations, as now summarised (and clarified) in Ullens de Schooten. (100)

115. In order to avoid any confusion, I would like to stress the fundamental difference between the following two questions: (a) does a directive cover situations which are purely internal in nature and (b) should the Court reply to a question even though the disputes in the main proceedings are confined within a single Member State. (101) Question a) concerns the material scope of a directive. It is a question of substance. If the answer to this question is ‘yes’, the matter ends there in the sense that no search for any possible cross-border elements is necessary. Question (b) on the other hand is not of a substantial, but of a formal nature. It is about the admissibility of a case. One only needs to analyse Question (b) if the answer to question (a) is ‘no’. Ullens de Schooten (102) deals with Question (b).

116. In Rina Services and Others, (103) a case on national legislation requiring companies classified as certification bodies to have their registered office in a particular Member State, although the facts of the case in the main proceedings were clearly confined to one Member State only, the Court, without addressing this issue, interpreted the provisions of Chapter III of Directive 2006/123. Subsequently, in Trijber and Harmsen, the Court did not answer the question whether the provisions of Chapter III of Directive 2006/123 apply in a purely internal situation. Instead, it looked for and found sufficient cross-border elements.(104) Such an approach changed with Hiebler. (105) The facts in Hiebler, a case about territorial restrictions allowing chimney sweeps to offer their services merely in the sweeping area in which they are resident were confined to one Member State. (106) The Court made no mention of a compulsory cross-border element and directly proceeded to an examination of the questions referred. (107) The same goes for the judgment in Promoimpresa and Others (108) which was about national legislation under which the period of validity of concessions of State‑owned maritime and lakeside property was automatically extended. Again, although the facts of the case before the referring court were confined to one Member State, (109) the Court, without making an issue of this confinement, interpreted the provisions of Chapter III. (110) By contrast, when it analysed Article 49 TFEU, it required a ‘cross-border interest’. (111) Furthermore, in Hemming and Others, a case about the requirement for the payment of a fee in the context of an application for an authorisation, all the facts were set in London. Neither the Court (112) nor the Advocate General (113) addressed that question.

117. In summary, I read the abovementioned cases where there was a purely internal situation in the following manner: by interpreting the provisions of Chapter III of Directive 2006/123, the Court presupposed that those provisions do apply in a purely internal situation. (114) As they fell within the material scope of Directive 2006/123, there was no need to look for any possible or potential cross-border elements.

118. Not surprisingly, I would propose that the Court in the case at issue should follow this case-law, which is why my answer to the fourth question is that the provisions of Chapter III of Directive 2006/123 are applicable to situations such as those in the main proceedings, regardless of whether or not all the factors are confined within a single Member State.

3.      On possible cross-border elements (Question 3)

119. On the basis of the reply proposed to the fourth question, the third question becomes hypothetical. (115)

4.      Zoning plan under Directive 2006/123 (Questions 2 and 5)

120. By the second and fifth questions, the referring court, in essence, seeks to ascertain whether the provisions of Directive 2006/123 preclude a municipal zoning plan such as the one at issue in the main proceedings, according to which an area is designated for retail trade in bulky goods, to the exclusion of a retail outlet for a shoe and clothing discount chain.

121. Given that the establishment of a retail outlet such as that in the main proceedings is of a permanent nature, the relevant provisions for the appraisal of this question are to be found in Chapter III of the directive, on ‘freedom of establishment for providers’. This Chapter III is, in turn divided into two sections: one on authorisations, dealing with authorisation schemes and relevant conditions and procedures (Section 1, that is Articles 9 to 13 of Directive 2006/123) and one on requirements prohibited or subject to evaluation (Section 2, that is Articles 14 and 15 of Directive 2006/123). The applicability of these sections depends on whether the zoning plan at issue constitutes a restriction in the form of an ‘authorisation scheme’ within the meaning of Article 4(6) of Directive 2006/123 or in the form of a ‘requirement’ under Article 4(7) of that directive.

(a)    On authorisations

122. An ‘authorisation scheme’, which triggers the applicability of Articles 9 to 13 of Directive 2006/123, is, pursuant to Article 4(6) of that directive, any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal or an implied decision, concerning access to a service activity or exercise thereof.

123. A decision is typically, though not necessarily in every instance, directed at an individual (natural or legal) person. This is not the case for a zoning plan, which is a document drafted independently in advance. In other words, while compliance with the zoning plan may be necessary to commence a service activity, the zoning plan itself is an act of a municipal council ex ante and in abstracto. It follows that a zoning plan does not constitute an authorisation scheme.

124. Such an understanding of the terms ‘authorisation scheme’ seems to me to be corroborated by the case-law of the Court.

125. Though the Court has, to my knowledge, not yet had to lay down in detail the distinction between an ‘authorisation scheme’ and other forms of restriction, it has been confronted in three instances with cases of authorisation schemes under Directive 2006/123: Trijber and Harmsen, (116)Promoimpresa and Others (117) and Hemming and Others. (118) At stake was always a decision by an administrative authority which was necessary before the service provider could commence its activity. In a similar vein, the EFTA Court classified a system of permits for builders in Norway as an authorisation scheme within the meaning of Article 16(2)(b) (119) of Directive 2006/123, as a permit was necessary for a building company starting construction work in Norway.

126. In all these cases the service provider (1) needed to request a decision from an authority, (2) received a decision addressed to it in concreto and (3) that decision and the compliance therewith was a prerequisite for the service provider to commence its activity. (120)

127. None of these three elements is present in the case at issue, which is why I hold the view that a zoning plan such as the one in the main proceedings does not constitute an authorisation scheme in the sense of Article 4(6) of Directive 2006/123.

(b)    On requirements

128. A ‘requirement’ under Article 4(7) is ‘any obligation, prohibition, condition or limit provided for in the laws, regulations or administrative provisions of the Member States’. (121)

129. A zoning plan such as that of the municipality of Appingedam is an administrative provision which constitutes a conditio sine qua non for an economic operator to establish itself in such a municipality. It thus falls under the definition of a ‘requirement’ within the meaning of Directive 2006/123.

(c)    On recital 9 of Directive 2006/123

130. Before we go on to examine Articles 14 and 15 of Directive 2006/123, we must address the issue, raised by the referring court, whether recital 9 of that directive has as its effect to exclude a measure such as a zoning plan from the scope of the directive.

131. Recital 9 of the directive states that the directive ‘applies only to requirements which affect the access to, or the exercise of, a service activity. Therefore, it does not apply to requirements, such as road traffic rules, rules concerning the development or use of land, town and country planning, building standards as well as administrative penalties imposed for non-compliance with such rules which do not specifically regulate or specifically affect the service activity but have to be respected by providers in the course of carrying out their economic activity in the same way as by individuals acting in their private capacity’.

132. It is well known that while recitals of EU legal acts do not have any independent legal value, (122) the Court frequently resorts to them in interpreting provisions of an EU legal act and has also already done so with respect to Directive 2006/123. (123) In the EU legal order they are descriptive and not prescriptive in nature. Indeed, the question of their legal value does not normally arise for the simple reason that, typically, the recitals are reflected in the legal provisions of a directive. Good legislative practice by the political institutions of the EU tends to aim at a situation in which the recitals provide a factual background to the provisions of a legal text.

133. Recital 9, however, is not reflected elsewhere in the directive in the sense that it mirrors one of the (prescriptive) provisions. As a consequence, the areas listed in that recital are therefore not per se exempted from Directive 2006/123, just because they happen to be mentioned in that recital. The directive does not, therefore, contain a blind spot when it comes to zoning plans.

134. In so far as some parties to the proceedings have invoked the Court’s judgment in Libert and Others, (124) suffice it to state that, although recital 9 was mentioned in that judgment, the reason why the Court considered measures relating to social housing to fall outside the scope of Directive 2006/123 was the unambiguous wording of Article 2(2)(j) of that directive. (125)

135. This does not mean, however, that that recital is devoid of interpretative value. I read recital 9 against the backdrop of Member States’ obligation pursuant to Article 15(7) of Directive 2006/123 to notify the Commission of newly enacted requirements and of their obligation pursuant to Article 39(1)(b) of Directive 2006/123 to present a report to the Commission, containing the information specified in Article 15(5), on requirements to be evaluated. Surely, it cannot be expected of Member States that they should notify the Commission of each and every zoning plan, as a measure of town and country planning.

136. Ergo, recital 9 clarifies that in most cases urban planning laws do not constitute requirements under Directive 2006/123. The majority of urban planning laws, particularly those applicable erga omnes, do not affect service providers as they do not lay down a condition affecting a provider’s service. (126) Directive 2006/123 protects a services provider from burdens that affect service providers more than citizens who do not provide services, but it is clear that the directive does not intend to eradicate general administrative necessities such as building standards, road traffic rules or urban planning laws. Not everything that might have the most incidental effect on the freedom of establishment should constitute a requirement.

137. By contrast, recital 9 does not imply that a zoning plan is excluded from the scope of the directive altogether. Indeed, it may be that the zoning plan affects service providers specifically. Territorial restrictions (Article 15(2)) and authorisations for hypermarkets (recital 47) are expressly referred to in the directive. Moreover, in my understanding, any rule, regardless of its origin, which has as its effect higher establishment costs for service providers, falls, in principle within the scope of Directive 2006/123.

138. The measure at issue, namely a prohibition on pursuing certain retail activities in a certain area, creates such additional establishment costs and is, thus, caught by Directive 2006/123.

139. In the light of recital 9 of Directive 2006/123, a zoning plan such as the one at issue is not, therefore, excluded from the directive’s scope.

(d)    On Article 14(5) of Directive 2006/123

140. Article 14 of Directive 2006/123, on prohibited requirements, lists eight requirements which Member States can under no circumstances enact when it comes to the access to or the exercise of a service activity in their territory. This ‘black list’ seeks to ensure the systematic and swift removal of certain restrictions on freedom of establishment, regarded by the EU legislature and the case-law of the Court as adversely affecting the proper functioning of the internal market. (127)

141. Article 14(5) of Directive 2006/123, in short, prohibits making establishment subject to a case-by-case application of an economic test. While there seems to be a certain economic element to a zoning plan which forbids certain retail activities in certain areas, the measure falls outside Article 14(5) of Directive 2006/123. There is neither a case-by-case test applied before establishment, nor does the economic element of the measure seem to be predominant (128) (see analysis on the justification below).

(e)    On Article 15 of Directive 2006/123

142. The question which remains to be examined is whether the zoning plan comes under Article 15(2)(a) of Directive 2006/123, (129) which precludes quantitative or territorial restrictions.

143. As rightly pointed out by the Italian Government in its observations on the case, a zoning plan such as that in the case at issue constitutes such a territorial restriction. (130) The plan limits the potential space on which service providers can establish themselves, but it does not limit their number provided sufficient space is designated for their activities.

144. Such a restriction can only be justified if the conditions listed in Article 15(3) are satisfied. (131)

145. The assessment of facts under this provision is ultimately to be carried out by the referring court. On the basis of the information available, however, the measure at issue, that is to say the attribution of specific selling spaces, appears to me to be justified under Article 15(3) of Directive 2006/123.

146. We are in the presence of an indistinctly applicable measure, which applies in law and in fact in the same way to all service providers and which does not discriminate, directly or indirectly, on the basis of nationality.

147. The protection of the urban environment, invoked as an overriding reason relating to public interest, is recognised in Article 4(8) of Directive 2006/123 (132) which codifies, in this respect previous case-law on Article 56 TFEU. (133) A town may have an interest in contributing, by way of a zoning plan, to its centre retaining its vitality and maintaining its original character. Regulating which shops can be set up where can, in general, be part of such a policy. Moreover, a town may also want to influence the volume and flow of traffic inside and outside of town. It should be added that the measure in question is not an economic one in the sense that its purpose and effect is to favour certain retailers over others. It is rather about the way of life in a town and is very close to a cultural policy, which is also recognised as an overriding reason relating to the public interest in Article 4(8) of Directive 2006/123. (134)

148. The measure seems proportionate and not to exceed what is necessary in attaining its aim. Shopping centres outside the town centre have a self-reinforcing effect. Once some shops are outside the town centre and inhabitants take their cars there, that location also becomes more attractive to other shops which hitherto settled in the town centre. The only way to avoid the negative consequences of increased traffic and empty inner cities is thus to restrict the possibilities for service providers to settle outside the town centre.

149. In this context and crucially, it has been also made clear by the municipality in the case at issue that the measure does not prevent the establishment of the service providers in the town as such, since there is sufficient retail space available at affordable prices. (135) Indeed, there seems to be no indication that the zoning plan indirectly limits the number of retailers in the municipality.

150. As stated, whereas there seems to be no reason to assume the measure is disproportionate, this will be for the referring court to verify. Should the referring court come to the conclusion that the surfaces are limited to such an extent that providers such as Bristol BV cannot establish themselves or are deterred from doing so, the measure fails the proportionality test and would thus be precluded by Article 15 of Directive 2006/123.

151. The answer to the second and fifth questions should therefore be that a zoning plan such as that in the case at issue which only permits certain types of retail constitutes a territorial restriction within the meaning of Article 15(2)(a) of Directive 2006/123, which can be justified on the basis of Article 15(3) of that directive, if it is proven that it pursues the aim of protection of the urban environment in a proportionate manner.

5.      On Articles 34 and 49 TFEU (Question 6)

152. In the light of the proposed reply to the previous questions, given that the case at hand falls within the scope of Directive 2006/123, an analysis with respect to the Treaty freedoms is not necessary.(136)

VI.    Conclusion

153. In light of all the foregoing considerations, I propose that the Court should answer the questions referred by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) and the Raad van State (Council of State, Netherlands) as follows:

(1)      Fees/charges, such as those at issue in the main proceedings in Case C‑360/15, levied by an authority of a Member State in respect of the processing of an application for consent with regard to the timing, location and manner of performance of excavation works associated with the installation of cables for a public electronic communications network fall within the scope of Article 2(2)(c) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market. They do not pertain to the field of taxation within the meaning of Article 2(3) of Directive 2006/123.

(2)      A retail activity consisting of the sale of goods such as shoes and clothing to consumers falls within the definition of ‘service’ in Article 4(1) of Directive 2006/123.

(3)      The provisions of Chapter III of Directive 2006/123 are applicable to situations such as those in the main proceedings in Case C‑31/16, regardless of whether or not all the factors are confined within a single Member State.

(4)      A zoning plan, such as the one in the case at issue in the main proceedings in Case C‑31/16, which only permits certain types of retail constitutes a territorial restriction within the meaning of Article 15(2)(a) of Directive 2006/123, which can be justified on the basis of Article 15(3) of that directive, if it is proven that it pursues the protection of the urban environment in a proportionate manner.

1      Original language: English.

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’).

7      By, for instance, recognising that the restrictions to the fundamental freedoms go beyond a mere principle of non-discrimination on the basis of nationality, see, as regards goods, judgment of 11 July 1974, Dassonville (8/74, EU:C:1974:82), concerning establishment, judgment of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411), and with respect to services, judgment of 25 July 1991, Säger (C‑76/90, EU:C:1991:331).

8      By, for instance, limiting the scope of the free movement of goods in the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905), or, indeed, by regularly allowing for justified restrictions on the part of the Member States and by developing its case-law on grounds of justification not expressly referred to in the FEU Treaty.

9      To give the most benign examples: by recognising, in judgment of 20 February 1979, Rewe-Zentral (120/78, EU:C:1979:42, ‘Cassis de Dijon’), for goods and in judgment of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411), for establishment, that Member States could resort to grounds of justification other than those expressly contained in the FEU Treaty, the Court took into account, for instance, that there is such a thing as consumer protection or protection of the environment – concepts that were not on the minds of ‘the Masters of the Treaties’ in 1957.

10      The notable exception being the free movement of workers, see judgment of 6 June 2000, Angonese (C‑281/98, EU:C:2000:296).

11      Although, in practice, it is often easy to construe a situation with a cross-border element, see judgment of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641), and although the Court has been liberal when it comes to accepting preliminary references in cases the facts of which are clearly confined to a single Member State (for an authoritative summary of the case-law as it stands, see judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874).

12      See recitals 5 and 6 of Directive 2006/123.

13      Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36).

14      See Wathelet, M., ‘La genèse de la directive “services”’, in Ferrari-Breeur (ed.), La directive “services”,Bruylant, Brussels 2011, pp. 21-31, at pp. 23-25.

15      See Article 44(1) of Directive 2006/123.

16      This could be interpreted as a good sign in the sense that the directive meets its purported aim of providing for legal clarity, thereby reducing litigation.

17      Directive of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive, OJ 2002 L 108, p. 7).

18      Directive of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive, OJ 2002 L 108, p. 21), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37).

19      Directive of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive, OJ 2002 L 108, p. 33), as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 37) and as corrected (OJ 2013 L 241, p. 8).

20      Directive of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive, OJ 2002 L 108, p. 51).

21      Besides, the parties to the main proceedings as well as the Netherlands harbour doubts regarding the interpretation of Article 2(2)(c) of Directive 2006/123 as carried out by the referring court.

22      See recital 5 of Directive 2002/21. The other directives are Directive 2002/19, Directive 2002/22, and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (OJ 1998 L 24, p. 1).

23      Articles 1 and 2 of Directive 2002/21; see also Bell, R.S.K./Ray, N., EU Electronic Communications Law, Richmond Law & Tax, 2004, p. 24.

24      Recital 7 of Directive 2002/20.

25      Recital 36 of Directive 2002/20.

26      Given that the exact purpose of the network does not emerge from the facts submitted to the Court. It is for the referring court to establish whether the network constitutes, in addition, a ‘public communications network’ as defined by Article 2(d) of Directive 2002/21.

27      ‘Rights of use’ refer to the rights granting use of radio frequencies (see Article 5 of Directive 2002/20). However, this bears no relevance for the present case.

28      See e.g. judgment of 27 June 2013, Vodafone Malta and Mobisle Communications (C‑71/12, EU:C:2013:431, paragraphs 21 et seq.).

29      A charge not linked to a general authorisation is not caught by Article 12 of Directive 2002/20. See judgments of 17 December 2015, Proximus (C‑454/13, EU:C:2015:819, paragraph 22), and of 17 September 2015, Fratelli De Pra and SAIV (C‑416/14, EU:C:2015:617, paragraph 41).

30      As the Netherlands Government has not notified that commune to the Commission as a national regulatory authority. Such non-notification has been considered by the Court as sufficient for excluding the quality of national regulatory authority for a commune, see, for instance, judgment of 7 November 2013, UPC Nederland (C‑518/11, EU:C:2013:709, paragraph 53).

31      Emphasis added.

32      In the French and German language versions, Article 11 of Directive 2002/21 and Article 13 of Directive 2002/20 employ the same terms (‘autorité compétente’ or ‘zuständige Behörde’), whereas in the English language version there is a slight linguistic difference between a ‘relevant authority’ (Article 13 of Directive 2002/20) and a ‘competent authority’ (Article 11 of Directive 2002/21). In my view, however, there can be no doubt that both Article 11 of Directive 2002/21 and Article 13 of Directive 2002/20 refer to the same kind of authorities.

33      Indeed, it emerges from the Commission Communication on its 1999 public consultation on the new regulatory framework (COM(2000) 239 final, pp. 8-9) that the perceived problem by Telecoms operators were the overburdening licencing schemes by national regulators. As the attribution of radio frequencies and numbers necessitates some sort of authorisation scheme, fees for rights of way were regarded as an extra cost to these authorisations and licences.

34      See recital 1 of that directive.

35      See judgment of 12 July 2012, Vodafone España and France Telecom España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraph 28 and the case-law cited).

36      Article 8 of Directive 2002/21.

37      On the possibility that administrative costs distort competition see also Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, points 62 to 64).

38      It is worth noting that the regulatory framework applies to all electronic communications and not just to telephone providers, where a general authorisation scheme is usually necessary for the fact that a limited set of numbers and available radio frequencies needs to be attributed in a fair way.

39      Judgment of 12 July 2012 (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraphs 34 and 35).

40      Opinion of Advocate General Sharpston in Joined Cases Vodafone España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:162, point 63).

41      In Belgacom and Mobistar, the case concerned a general tax which had to be paid based on the ground occupied and unlinked to the installation of a facility, see judgment of 4 September 2014 (C‑256/13 and C‑264/13, EU:C:2014:2149, paragraphs 36 and 37); in a similar way, the Court did not apply Directive 2002/20 to municipal legislation charging a tax on all telecommunication equipment in judgment of 17 December 2015, Proximus (C‑454/13, EU:C:2015:819). Neither in Proximus (paragraph 28) nor in Belgacom and Mobistar (paragraph 36) were the fees related to the installation of facilities, nor did the taxes have the character of making the market entry more onerous for new entrants that did not already have infrastructure installed.

42      According to the Netherlands Government, the Netherlands legislator transposed this article in Article 5.4 of the Telecommunication laws which grants the network provider the right to lay cables after having accorded time and place of the works with the competent municipality.

43      Judgment of 12 July 2012, Vodafone España and France Telecom España (C‑55/11, C‑57/11 and C‑58/11, EU:C:2012:446, paragraph 39).

44      See judgment of 18 January 1984, Ekro (327/82, EU:C:1984:11, paragraph 11). See also judgments of 19 September 2000, Linster (C‑287/98, EU:C:2000:468, paragraph 43), and of 4 September 2014, Germanwings (C‑452/13, EU:C:2014:2141, paragraph 16).

45      See also recitals 19 and 20 of Directive 2006/123.

46      See also judgment of 27 February 2014, OSA (C‑351/12, EU:C:2014:110, paragraph 58).

47      On the value of recitals as a tool of interpretation, in particular as regards Directive 2006/123, see point 132 and footnote 123 of this Opinion.

48      ‘Distributive trades’ is the term commonly employed by the Commission to cover retail and similar activities, see e.g. p. 3 of the Communication setting up a retail action plan COM(2013)36 final. It is also worth noting that the original Report from the Commission to the Council and the European Parliament on the state of the internal market for services, presented under the first stage of the Internal Market Strategy for Services (COM(2002) 441 final) mentioned ‘retail’ a striking 35 times. I am well aware that the report constituted the basis for the initial draft of the Bolkestein directive, which was, subsequently subject to major modifications. That said, I am not under the impression that the objectives and provisions of the directive were altered in so far as the material scope and the activities covered are concerned. The contentious issues at the time were rather, as is all too well known, the country-of-origin principle and its various legal consequences and ramifications. On this last aspect, see Obwexer, W., Ianc, Sinziana, ‘Das binnenmarktliche Recht der Dienstleistungsfreiheit’, in Müller-Graff, P.-Chr. (ed.), Europäisches Wirtschaftsordnungsrecht (Enzyklopädie Europarecht, Band 4), Nomos, Baden-Baden, 2015, pp. 397-448, at pp. 428-429.

49      It should be stressed that, previously, the Court has already contented itself with a reference to recital 33 so as to hold that services of certification fell within the scope of the directive: see judgment of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraph 24).

50      See my Opinions in Joined Cases Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:505, points 36 and 54) and in Hiebler (C‑293/14, EU:C:2015:472, point 69). See also Opinions of Advocate General Cruz Villalón in Femarbel (C‑57/12, EU:C:2013:171, point 22) and in Rina Services and Rina (C‑593/13, EU:C:2015:159, point 39).

51      See Handbook on the implementation of the Services Directive, Office for Official Publications of the European Communities, 2007, point 2.1.1, available at http://bookshop.europa.eu/en/handbook-on-implementation-of-the-services-directive-pbKM7807096/. The Commission’s position, as expressed in the Handbook is perhaps not surprising since the Commission’s agenda appears to have been, right from the start, to include distributive trades within the scope of Directive 2006/123.

52      See judgments of 23 December 2015, Hiebler (C‑293/14, EU:C:2015:843, paragraphs 32, 53 and 73), and of 11 July 2013, Femarbel (C‑57/12, EU:C:2013:517, paragraph 37).

53      See position of the Parliament in the first reading. The Parliament proposed to delete recital 14 of the Commission’s Proposal.

54      See recital 33.

55      See Part III, Title IV, TFEU on free movement of persons, services and capital, which is in turn divided into Chapter 1 (Workers), Chapter 2 (Establishment), Chapter 3 (Services) and Chapter 4 (Capital and payments).

56      This systematic finding does not in any way alter the fact that the freedom to provide services primarily relates to service as a product. See, in this respect, Müller-Graff, P.-Chr., in Streinz, R. (ed.), EUV/AEUV Kommentar, C. H. Beck, Munich, 2^nd edition, 2012, Artikel 56 AEUV, point 7.

57      See also Klamert, M., Services Liberalization in the EU and the WTO, Cambridge University Press, 2015, p. 177.

58      See also, albeit with reference to Chapter III of Directive 2006/123, Klamert, M., ibid.

59      See Article 56(1) TFEU.

60      In Article 57, second and third paragraphs, TFEU, it refers to ‘activities’, but it does so in an illustrative context.

61      Article 53 TFEU specifically refers to ‘activities’.

62      The term ‘activity’, in singular or plural is employed a striking 146 times in the directive: 85 instances in the preamble and 61 in the provisions of the directive. In contrast, the term ‘barrier(s)’ is referred to 15 times, and only in the preamble, whereas the term ‘restriction(s)’ is resorted to in 20 instances: 15 in the preamble and 5 in the provisions.

63      And notwithstanding the question of purely internal situations, discussed below.

64      In situations where someone establishes him or herself to sell goods or offer services.

65      See judgments of 11 May 1999, Pfeiffer (C‑255/97, EU:C:1999:240, paragraph 26), of 24 March 2011, Commission v Spain (C‑400/08, EU:C:2011:172, paragraphs 70 to 72), and, more recently, of 5 February 2014, Hervis Sport- és Divatkereskedelmi (C‑385/12, EU:C:2014:47, paragraph 24).

66      See, by way of example, Müller-Graff, P.-Chr., in Streinz, R. (ed.), EUV/AEUV Kommentar, C. H. Beck, Munich, 2^nd edition, 2012, Artikel 56 AEUV, point 8; and Tiedje, J., in von der Groeben, H., Schwarze, J., Hatje, A. (eds), Europäisches Unionsrecht (Kommentar), Band 1, 7^th ed., Nomos, Baden-Baden, 2015, Artikel 57 AEUV, point 30.

67      See judgment of 3 October 2006, Fidium Finanz (C‑452/04, EU:C:2006:631, paragraph 32).

68      See judgment of 14 October 2004, Omega (C‑36/02, EU:C:2004:614, paragraph 26 and the case-law cited). In legal writing see, by way of example, Frenz, W., Handbuch Europarecht, Band 1 Europäische Grundfreiheiten, Springer, 2. ed. 2012, p. 31, Rz. 74, and Hatzopoulos, V., ‘Recent Developments in the Case Law of the ECJ in the Field of Services’, Common Market Law Review, 2000, vol. 37, p. 51.

69      See, for instance, judgment of 13 January 2000, TK-Heimdienst (C‑254/98, EU:C:2000:12). Also, a prohibition of sale at a loss was examined under the provisions of free movement of goods: see judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 10). As is well known, the Court in Keck and Mithouard considered even that freedom not to apply.

70      Judgment of 26 May 2005 (C‑20/03, EU:C:2005:307).

71      See judgment of 26 May 2005, Burmanjer and Others (C‑20/03, EU:C:2005:307, paragraph 34).

72      Judgments of 30 April 1974, Sacchi (155/73, EU:C:1974:40), and of 18 March 1980, Debauve and Others (52/79, EU:C:1980:83). A case on trade fairs came under the freedom to provide services and the freedom of establishment: see judgment of 15 January 2002, Commission v Italy (C‑439/99, EU:C:2002:14). Coffeeshops were scrutinised under the freedom to provide services: see judgment of 16 December 2010, Josemans (C‑137/09, EU:C:2010:774, paragraph 50).

73      One exception in the appreciation of advertisements in terms of the delimitation of fundamental freedoms is the judgment of 25 March 2004, Karner (C‑71/02, EU:C:2004:181, paragraph 47), where the Court implied that advertising falls into the ambit of multiple freedoms, but then found the goods aspect to be predominant.

74      See judgment of 22 January 2002, Canal Satélite Digital (C‑390/99, EU:C:2002:34, paragraph 29).

75      See Opinion of Advocate General Stix-Hackl in Canal Satélite Digital (C‑390/99, EU:C:2001:147, point 35).

76      See judgments of 9 July 1997, De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1997:344, paragraphs 39 and 48), and of 8 March 2001, Gourmet International Products (C‑405/98, EU:C:2001:135, paragraphs 13 and 35).

77      Neither did, incidentally, Advocate General Jacobs in either of those cases. See his Opinions in Joined Cases De Agostini and TV-Shop (C‑34/95 to C‑36/95, EU:C:1996:333) and in Gourmet International Products (C‑405/98, EU:C:2000:690).

78      Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905).

79      Such a precision was, in my view, necessary, given that, in Keck and Mithouarditself, the Court did not consider fundamental freedoms other than the free movement of goods: see judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 6).

80      Judgment of 16 June 2015 (C‑593/13, EU:C:2015:399). As pointed out by Advocate General Cruz Villalón in his Opinion in that case, this was the first case in which the provisions of Directive 2006/123 applied in practice: see his Opinion in Rina Services and Rina (C‑593/13, EU:C:2015:159, point 1).

81      In casu a Member State’s legislation requiring companies classified as certification bodies to have their registered office in that Member State.

82      Article 52(1) TFEU.

83      According to which Member States are to apply its provisions ‘in compliance with the rules of the FEU Treaty on the right of establishment and the free movement of services’.

84      See judgment of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraphs 36 to 40). This was reiterated in judgment of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 47).

85      See also Schönberger, Chr., ‘Normenkontrollen im EG-Föderalismus: die Logik gegenläufiger Hierarchisierungen im Gemeinschaftsrecht’, Europarecht, 2003, pp. 600-627, at p. 621, according to whom primary law is to be understood more as the motor, rather than the limit, of harmonisation measures.

86      Judgment of 24 November 1993 (C‑267/91 and C‑268/91, EU:C:1993:905).

87      See Kotler, P./Armstrong, G., Principles of Marketing, 14^th ed., Pearson Prentice Hall, 2012, Chapter on Retail, pp. 374‑394, at p. 384.

88      See Question 2 in Case C‑340/14 and Question 1 in Case C‑341/14, respectively paragraphs 28 and 37 in judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641).

89      See Joined cases C‑340/14 and C‑341/14, EU:C:2015:505, points 49 to 57.

90      The Court, in that case, saw no need to address and therefore declined to answer the question of purely internal situations, given that, in both cases the situations which were the subject of the questions referred were not purely internal: see judgment of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 42).

91      I subsequently reiterated my view in my Opinions in Hiebler (C‑293/14, EU:C:2015:472, point 24) and in Joined Cases Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:122, point 50).

92      See, by way of example, Article 5(3) of Directive 2006/123.

93      See, for instance, Chapter VI of the directive.

94      Formerly Articles 47(2) and 55 EC.

95      The Court itself refers to ‘harmonisation’ in this respect: see judgment of 12 October 2004, Paul and Others (C‑222/02, EU:C:2004:606, paragraph 36).

96      Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190).

97      Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).

98      Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast) (OJ 2006 L 177, p. 201).

99      Even though these included a case where the Court sat as full Court (see judgment of 12 October 2004, Paul and Others, C‑222/02, EU:C:2004:606), which concerned First Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ 1977 L 322, p. 30), Council Directive 89/299/EEC of 17 April 1989 on the own funds of credit institutions (OJ 1989 L 124, p. 16), and Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC (OJ 1989 L 386, p. 1), all of which had been adopted under Article 53 TFEU.

100      Judgment of 15 November 2016 (C‑268/15, EU:C:2016:874).

101      See also my Opinion in The Gibraltar Betting and Gaming Association (C‑591/15, EU:C:2017:32, point 62).

102      Judgment of 15 November 2016 (C‑268/15, EU:C:2016:874).

103      See judgment of 16 June 2015 (C‑593/13, EU:C:2015:399). Advocate General Cruz Villalón addressed the issue in his Opinion and came to the conclusion that there were sufficient (potential) cross-border elements: see his Opinion in Rina Services and Rina (C‑593/13, EU:C:2015:159, points 14 and 15). It should, nevertheless, be noted that the Advocate General did not address the question of whether purely internal situations fall under Chapter III of Directive 2006/123.

104      See judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641, paragraph 42).

105      Judgment of 23 December 2015 (C‑293/14, EU:C:2015:843).

106      They were even confined to a region within the Member State concerned, which, as I argued in my Opinion was without relevance, as a cross-border element was not necessary, see my Opinion in Hiebler (C‑293/14, EU:C:2015:472, points 23 and 24).

107      See judgment of 23 December 2015, Hiebler (C‑293/14, EU:C:2015:843, paragraphs 27 et seq.).

108      Judgment of 14 July 2016 (C‑458/14 and C‑67/15, EU:C:2016:558).

109      In my Opinion in Joined Cases Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:122, point 50), I reiterated my view that the provisions of Chapter III of Directive 2006/123 on freedom of establishment are applicable whether or not there is a cross-border element.

110      See judgment of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraphs 27 et seq.)

111      See judgment of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraph 68).

112      See judgment of 16 November 2016, Hemming and Others (C‑316/15, EU:C:2016:879).

113      See Opinion of Advocate General Wathelet in Hemming and Others (C‑316/15, EU:C:2016:618).

114      Case-notes in legal literature have also drawn this conclusion, in so far as they analysed that question. See, for instance, Reinstadler, A., Reinalter, A., ‘Partikuläre Anwendung der RL 2006/123/EG auf rein innerstaatliche Sachverhalte?’, Zeitschrift für Europarecht, internationales Privatrecht und Rechtsvergleichung, 2016, pp. 124-126, at p. 125; Korte, S., ‘Dienstleistungsfreiheit: Gebietsbeschränkungen für Rauchfangkehrer’, Europäische Zeitschrift für Wirtschaftsrecht, 2014, pp. 224-229, at p. 228; and Streinz, R., ‘Anwendungsbereich der DienstleistungsRL bei rein innerstaatlichen Sachverhalten; Kohärenz und Systematik als Maßstab für die Verhältnismäßigkeit der territorialen Beschränkung von Gewerbekonzessionen’, Juristische Schulung, 2016, pp. 759-761, at p. 761. Critical, with respect to my Opinion in Joined Cases Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:505), Schiff, A., ‘Zur Anwendbarkeit der Dienstleistungsrichtlinie auf Inlandssachverhalte’, Zeitschrift für europäisches Wirtschaftsrecht, 2015, pp. 899-904, at p. 901.

115      See also point 115 of this Opinion.

116      Judgment of 1 October 2015 (C‑340/14 and C‑341/14, EU:C:2015:641).

117      Judgment of 14 July 2016 (C‑458/14 and C‑67/15, EU:C:2016:558).

118      Judgment of 16 November 2016 (C‑316/15, EU:C:2016:879).

119      Judgment of the EFTA Court of 28 September 2015, EFTA Surveillance Authority v The Kingdom of Norway, EFTA Court Report 2015-484, paragraph 50.

120      See the wording of Article 4(6), my emphasis: ‘“authorisation scheme” means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the exercise thereof”.

121      Or in consequence of case-law, administrative practice, the rules of professional bodies, or the collective rules of professional associations or other professional organisations, adopted in the exercise of their legal autonomy.

122      Judgments of 19 November 1998, Nilsson and Others (C‑162/97, EU:C:1998:554, paragraph 54), of 24 November 2005, Deutsches Milch-Kontor (C‑136/04, EU:C:2005:716, paragraph 32), and Opinion of Advocate General Ruiz-Jarabo Colomer in TeliaSonera Finland (C‑192/08, EU:C:2009:309, paragraphs 87 to 89).

123      See judgments of 8 May 2013 (C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 104); of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraphs 24 and 38), of 1 October 2015, Trijber and Harmsen (C‑340/14 and C‑341/14, EU:C:2015:641, paragraphs 44, 49, 52 and 53), of 23 December 2015, Hiebler (C‑293/14, EU:C:2015:843, paragraphs 41, 44 and 73), of 14 July 2016, Promoimpresa and Others (C‑458/14 and C‑67/15, EU:C:2016:558, paragraphs 39, 44 and 48), of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraphs 62, 63, 88, 106 and 111), and of 16 November 2016, Hemming and Others (C‑316/15, EU:C:2016:879, paragraph 28).

124      See judgment of 8 May 2013 (C‑197/11 and C‑203/11, EU:C:2013:288, paragraph 104).

125      According to which the directive does not apply to social services relating to social housing.

126      See also Rodin, S., ‘Scope of the Services Directive 2006/123/EC’, in Conference notes Internal Market for Services, University of Maribor, 2009, p. 21, and Klamert, M., Services Liberalization in the EU and the WTO, Cambridge University Press, 2015, p. 285.

127      See judgment of 16 June 2015, Rina Services and Others (C‑593/13, EU:C:2015:399, paragraph 39).

128      In the legal literature, the purpose of Article 14(5) is seen as being a test of economic demand (‘Bedarfsplanung’), see e.g. Schlachter, M./Ohler, Chr., Europäische Dienstleistungsrichtlinie, Handkommentar, Nomos, Baden-Baden, 2008, Artikel 14, point 16.

129      Article 15 is directly applicable and can be relied upon by individuals against a Member State: see my Opinion in Hiebler (C‑293/14, EU:C:2015:472, point 53).

130      See also points 6.2.5 and points 6.3.1 of the Commission Handbook on the Services Directive.

131      The wording of Article 15(3) of the directive is reminiscent of the Court’s formulation, in judgment of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph 37). See also Davies, G., ‘The Services Directive: extending the country of origin principle, and reforming public administration’, European Law Review, vol. 32, 2007, pp. 232‑245, at p. 234. On the requirements of Article 15(3) of the directive, see, moreover, Botman, M. R., De Dienstenrichtlijn in Nederland, Boom Juridische uitgevers, Den Haag, 2015, Chapter 7, § 4.1.2, p. 275.

132      It is, in addition, referred to as an overriding reason relating to the public interest in recitals 40, 56 and 66 of Directive 2006/123. Recital 40 even specifies expressly that it includes town and country planning in the protection of the urban environment.

133      See judgment of 29 November 2001, De Coster (C‑17/00, EU:C:2001:651, paragraph 38).

134      Even if cultural policy had not appeared in the case-law of the Court before the adoption of the directive, as is pointed out by Barnard, C., ‘Unravelling the services directive’, 45 Common Market Law Review, 2008, pp. 323-396, at p. 354.

135      The situation is thus strikingly different from the facts in Commission v Spain, where a Spanish law systematically excluded a certain type of retail outlet: see judgment of 24 March 2011 (C‑400/08, EU:C:2011:172).

136      See judgment of 23 February 2016, Commission v Hungary (C‑179/14, EU:C:2016:108, paragraph 118).

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