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 C‑31/16, 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

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.

9.

Recitals 9 and 33 of Directive 2006/123 read:

...

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:

...

...

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:

...

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:

...

…’

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:

...’

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:

the competent authority:

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:

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].’

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:

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:

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.

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.’

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 149949 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:

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:

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.

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.

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.

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 in Vodafone España and France Telecom España increased 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/fees levied 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.

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.

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.

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.

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 )

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’.

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.

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.

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’.

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.

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.

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.

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 )

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 Mithouard judgment: ( 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 Mithouard could, 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.

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 Others judgment 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.

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.

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.

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.

119.

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

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.

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.

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.

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.

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).

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.

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 )

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: