Case C-134/03

Viacom Outdoor Srl

v

Giotto Immobilier SARL

(Reference for a preliminary ruling from the Giudice di pace di Genova-Voltri)

(Freedom to provide services – Competition – Bill-posting services – Domestic legislation imposing a municipal tax on advertising – Supply by municipalities of a public bill-posting service – Power of the municipalities to regulate the supply of bill-posting services – Internal taxation not discriminatory)

Opinion of Advocate General Kokott delivered on 28 October 2004

Judgment of the Court (Third Chamber), 17 February 2005

Summary of the Judgment

1. Preliminary rulings – Admissibility – Need to supply the Court of Justice with information concerning the factual and legislative context – Extent of the obligation in the field of competition

(Arts 82 EC, 86 EC and 234 EC; Statute of the Court of Justice, Art. 23)

2. Freedom to provide services – Restrictions – Tax on outdoor advertising and bill-posting levied by a local authority – Permissible – Conditions

(Art. 49 CE)

1. If the Court is to be able to give helpful answers to the questions referred to it, it is necessary for the national court to define the factual and legislative context of the questions it asks or, at the very least, to explain the factual circumstances on which those questions are based.

That need for precision with regard to the factual and legislative context applies especially in the area of competition, which is characterised by complex factual and legal situations.

With regard to the factual context relating to the questions concerning the interpretation of Articles 82 EC and 86 EC, the determination of the materially and geographically relevant market, and the calculation of the market shares held by the various undertakings operating on that market, constitute the starting-point of any appraisal of a situation in the light of competition law.

(see paras 22-23, 25, 27)

2. Article 49 EC must be interpreted as not precluding the levying by a municipal authority of a tax on outdoor advertising and bill-posting which, first, because it is applicable without distinction to any provision of services entailing outdoor advertising and public bill-posting, does not draw any distinction based on the place of establishment of the provider or recipient of the bill-posting services or on the place of origin of the goods or services that form the subject-matter of the advertising messages disseminated and which, second, because it is applied only to outdoor advertising activities involving the use of public space administered by the local authorities and its amount is fixed at a level which may be considered modest in relation to the value of the services provided which are subject to it, is not on any view liable to prohibit, impede or otherwise make less attractive the provision of advertising services to be carried out in the territory of those authorities, including the case in which the provision of services is of a cross-border nature on account of the place of establishment of either the provider or the recipient of the services.

(see paras 37-39, operative part)

JUDGMENT OF THE COURT (Third Chamber) 17 February 2005 (1)

(Freedom to provide services – Competition – Bill-posting services – Domestic legislation imposing a municipal tax on advertising – Supply by municipalities of a public bill-posting service – Power of the municipalities to regulate the supply of bill-posting services – Internal taxation not discriminatory)

In Case C-134/03, REFERENCE for a preliminary ruling under Article 234 EC from the Giudice di pace di Genova-Voltri (Italy), by decision of 10 March 2003, received at the Court on 25 March 2003, in the proceedings between

and

THE COURT (Third Chamber),,

composed of A. Rosas (Rapporteur), President of the Chamber, A. Borg Barthet, J.-P. Puissochet, J. Malenovský and U. Lõhmus, Judges,

Advocate General: J. Kokott,

having regard to the written procedure and further to the hearing on

after hearing the Opinion of the Advocate General at the sitting on 28 October 2004,

gives the following

‘Outdoor advertising and public bill-posting shall be subject, in accordance with the provisions of the articles below, to a tax or a duty respectively payable to the municipality in the territory of which it is carried out.’

‘1. Every municipality shall be required to adopt a regulation for the application of the advertising tax and for the supply of bill-posting services.

2. In that regulation the municipality shall determine the manner in which advertising is to be carried out and may limit certain particular forms of advertising having regard to the public interest.

3. That regulation must in any event determine the type and quantity of advertising installations, the detailed rules for obtaining installation authorisation and the criteria for putting the general installation plan into effect. It must also provide for the division of the surface areas of public installations intended for bill-posting for institutional or social purposes or, in any case, for purposes with no economic relevance and those intended for bill-posting of a commercial kind, and also the area of the installations intended for bill-posting direct by individuals.

…’

‘The dissemination of advertising material using visual or acoustic means of communication, other than those subject to bill-posting duty, in public places or places open to the public or visible from those places shall be subject to the advertising tax provided for by this Decree.’

‘Where the medium used for advertising is installed on property belonging to the municipality or where the municipality has been given the right to use and enjoy that property, the application of the advertising tax does not exclude that application of the tax on the occupation of public spaces or the payment of rental or licence charges, the latter being proportionate to the actual occupation of public ground by the advertising medium’.

‘1. The public bill-posting service provides for the posting, by the municipality, on installations designed for that purpose, of notices of all kinds, containing information for institutional or social purposes or in any case for purposes without economic relevance or, where appropriate and to the extent provided for in the regulatory provisions referred to in Article 3, messages disseminated in connection with economic activity.

2. This service must be provided in municipalities which, on 31 December of the penultimate year before the current year, have a resident population of more than 3 000 inhabitants; in other municipalities, the service shall be optional.

3. The surface area of the installations to be made over to public bill-posting shall be decided by municipal regulation, in proportion to the number of inhabitants and may in no circumstances be less than 18 square metres per thousand inhabitants in municipalities with a population greater than 30 000 or less than 12 square metres in other municipalities.’

‘In consideration of the service of public bill-posting, a duty is payable jointly and severally by the person requesting the service and the person on whose behalf the service is requested, inclusive of the advertising tax, to the municipality which performs that service’.

‘­

On those grounds, the Court (Third Chamber) rules as follows:

[Signatures]