On May 18, 2017, the Opinion of Advocate General M. Szpunar was published regarding the preliminary questions referred to the Court of Justice by the Administrative Law Division of the Council of State on January 13, 2016. The questions concerned the interpretation of the European Services Directive.
Background
The reason was the zoning plan 'Stad Appingedam' adopted by the Appingedam City Council. This zoning plan relates to the Woonplein on the outskirts of Appingedam. At this Woonplein, the zoning plan allows for extensive/voluminous retail trade, such as retail trade in furniture, kitchens and building materials. However, real estate entrepreneur Visser Vastgoedbeleggingen BV wants to establish a shoe and clothing store there. In this regard, he had argued that the municipal council is violating the European Services Directive by only allowing retail trade in bulky goods.
The Administrative Law Division's questions to the Court
The Administrative Law Division saw this argument as grounds to ask the Court whether the European Services Directive applies. The Division further wanted to know from the Court whether retail trade consisting of the sale of goods to consumers constitutes a service. In addition, the Division wanted to know whether the Services Directive applies to zoning regulations aimed at maintaining the livability of the city center and preventing vacancy. The Division also wanted clarification as to whether this matter involved a so-called "purely internal situation" and whether the Services Directive applies to such a situation.
Further, if, according to the Court, the Services Directive should be applied to this case, the Division asked whether the zoning regulations in this case should be classified as requirements or as a permit system as referred to in the Services Directive. Depending on the answer to that question, the Division wanted to know whether these regulations would then violate the Services Directive.
The Advocate General's conclusion
The Advocate General has now concluded(read the full opinion here). The AG recommended that the Court answer the questions Council of State, in summary, as follows:
- Retail sales in the form of sales to consumers of goods (such as shoes and clothing) fall under the definition of "service."'
- The provisions of Chapter III of Services Directive apply in purely internal situations;
- A zoning plan is not a licensing scheme. A plan such as the one at issue here, under which only certain types of retail trade are permitted, constitutes a territorial restriction within the meaning of the Services Directive, which can be justified if it is shown that it pursues the protection of the urban environment in a proportionate manner.
Implications for practice
If the Court follows the Solicitor General in this conclusion, it is expected to have far-reaching consequences for zoning practice. Any time someone feels restricted or excluded as a service provider, they could require the competent authority to apply a proportionality test, as included in the Services Directive.
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