Joined Cases C‑340/14 and C‑341/14

R.L. Trijber

v

College van burgemeester en wethouders van Amsterdam

and

J. Harmsen

v

Burgemeester van Amsterdam

(Requests for a preliminary ruling from the Raad van State (Netherlands))

‛Reference for a preliminary ruling — Directive 2006/123/EC — Services in the internal market — Leisure boating — Window prostitution businesses — Article 2(2)(d) — Scope — Not included — Services in the field of transport — Freedom of establishment — Authorisation scheme — Article 10(2)(c) — Conditions for granting the authorisation — Proportionality — Language requirement — Article 11(1)(b) — Duration of the authorisation — Restriction of the number of authorisations available — Overriding reason relating to the public interest’

Summary — Judgment of the Court (Third Chamber) of 1 October 2015

1. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Scope — Services in the field of transport — Not included — Activity which consists in providing, for payment, a service of carrying passengers on a boat for a waterway tour of a city for event-related purposes — Included — Conditions — Verification by the national court

   (Arts 58(1) TFEU and 100(1) and (2) TFEU; European Parliament and Council Directive 2006/123, Art. 2(2)(d))

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Jurisdiction of the Court to provide guidance based on the case file

   (Art. 267 TFEU)

3. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Authorisation system — Duration of the authorisation — Activity which consists in providing, for payment, a service of carrying passengers on a boat for a waterway tour of a city for event-related purposes — Restriction of the number of authorisations granted for that purpose on account of overriding reasons relating to the public interest — Grant, by the competent national authorities, of authorisations for the exercise of that activity for an unlimited period — Not permissible

   (European Parliament and Council Directive 2006/123, Art. 11(1)(b))

4. Freedom of establishment — Freedom to provide services — Services in the internal market — Directive 2006/123 — Authorisation system — Conditions for granting the authorisation — Activity which consists in operating prostitution businesses in the daytime — National measure making the grant of an authorisation to carry out that activity subject to the use by the operator of a language understood by prostitutes — Lawfulness — Conditions — Proportionality — Verification by the national court

   (European Parliament and Council Directive 2006/123, Art. 10(2)(c))

1.  Article 2(2)(d) of Directive 2006/123 on services in the internal market must be interpreted as meaning that, subject to the checks to be carried out by the referring court, an activity which consists in providing, for payment, a service of carrying passengers on a boat for a waterway tour of a city for event-related purposes, does not constitute a service in the ‘field of transport’ within the meaning of that provision which is excluded from the scope of that directive.

   In that regard, in order to understand the scope of the exclusion laid down in Article 2(2)(d) of Directive 2006/123, the concept of ‘services in the field of transport’ must be interpreted by reference not only to the wording of that provision, but also to its purpose and general structure, in the context of the scheme laid down by that directive.

   As regards, first, the wording of Article 2(2)(d), the concept of ‘services in the field of transport’ adopted by the EU legislature as part of Directive 2006/123 corresponds to services falling within the scope of Title VI of Part Three of the FEU Treaty, which contains Articles 90 to 100 of that Treaty relating to the common transport policy, which are excluded, under Article 58(1) TFEU, from the provisions of that Treaty relating to the free movement of services. Although the provisions of Title VI do not provide a definition of the concept of ‘transport’, it follows from Article 100(1) TFEU that transport by ‘inland waterway’ falls under that title. Thus several maritime transport services have been the subject of specific common rules adopted by the EU legislature under Article 100(2) TFEU. With respect, next, to the purpose and scheme of Article 2(2)(d) of Directive 2006/123, the exclusion of services in the field of transport is intended to cover inter alia urban transport services. However, it does not follow from that exclusion that any service consisting in the provision of transport by waterway must automatically be classified as ‘transport’ or ‘urban transport’ within the meaning of that directive.

   Even if, prima facie, the activity at issue in the main proceedings constitutes transport by ‘inland waterway’ within the meaning of Article 100(1) TFEU, it is intended to provide the recipients of that service with the pleasant context of a celebration rather than point-to-point transport in the city of Amsterdam. In that regard, that service does not fall within any of the specific common rules adopted by the EU legislature under Article 100(2) TFEU. It follows that, although it is for the referring court to verify, the main purpose of that activity does not appear to be to provide a transport service within the meaning of Article 2(2)(d) of Directive 2006/123 and that, therefore, as the other exclusions provided for under Article 2(2) do not apply, that activity falls within the scope of that directive.

   (see paras 46-50, 56-59, operative part1)

2.  See the text of the decision.

   (see paras 55, 71)

3.  Article 11(1)(b) of Directive 2006/123 on services in the internal market must be interpreted as precluding the grant by the competent national authorities of authorisations for an unlimited period for the exercise of an activity which consists in providing, for payment, a service of carrying passengers on a boat for a waterway tour of a city for event-related purposes, where the number of authorisations granted for that purpose by those authorities is limited for overriding reasons relating to the public interest.

   According to the express wording of Article 11(1) of Directive 2006/123, authorisations granted to service providers must not be for a limited period, except in those cases exhaustively listed in Article 11(1), which include the case in which the number of available authorisations is limited by an overriding reason relating to the public interest. It follows that, where the number of available authorisations is limited by such an overriding reason relating to the public interest, those authorisations must, in contrast, be for a limited period. No discretion may be conceded, in that regard, to the competent national authorities, without undermining the objective pursued by Article 11 of Directive 2006/123 of securing service providers’ access to the market in question.

   (see paras 61-63, 66, operative part 2)

4.  Article 10(2)(c) of Directive 2006/123 on services in the internal market must be interpreted as not precluding a measure under which the grant of authorisation for the exercise of an activity consisting in the operation of window prostitution businesses by renting rooms out in shifts is subject to the condition that the service provider is able to communicate with the recipients of those services, in this case prostitutes, where that condition is such as to ensure that the legitimate objective of general interest pursued — namely the prevention of criminal offences related to prostitution — is secured, and does not go beyond what is necessary to achieve that objective, which is for the referring court to determine.

   Such a measure appears to be appropriate for achieving the objective pursued, since, by allowing prostitutes to give the operator of prostitution businesses directly and in person any evidence making it possible to establish the existence of an offence related to prostitution, it is likely to facilitate the performance by the competent national authorities of the necessary checks to ensure compliance with the provisions of national criminal law. That measure merely requires the use of any language that can be understood by the parties concerned, which is less intrusive on the freedom to provide services than a measure which imposes the exclusive use of an official language of the Member State concerned or another specific language. It does not appear that the measure at issue in the main proceedings requires a high degree of linguistic knowledge, merely that the parties can understand each other. Finally, there do not appear to be any less restrictive measures capable of securing the legitimate objective of general interest pursued since camera checks would not necessarily allow for the preventive identification of criminal offences.

   (see paras 73-77, operative part 3)