In its judgment of 30 January 2018 in the joined cases Amersfoort and Appingedam (C‑360/15 and C‑31/16), the Court of Justice of the European Union (CJEU) (Grand Chamber) clarifies several important questions regarding the scope of the Services Directive.
This judgment is first of all of importance for the retail sector since the CJEU decides that retail trade in goods is a service in the meaning of the Services Directive. Every rule or practice that impedes the exercise of retail trade activities should therefore comply with the conditions of the Directive.
Furthermore, the CJEU confirms for the first time that the provisions of the Directive regarding the freedom of establishment are also applicable to purely internal situations. While the CJEU had already applied these provisions to previous cases which appeared to have no cross-border element, the Court had not yet ruled on the application of this requirement under the Services Directive.
Finally, this judgment also has far-reaching implications for the urban planning rules of the Member States. Indeed, the CJEU rules that the Services Directive also applies to planning requirements which are addressed only to service providers (and thus not to private persons). According to the CJEU, such a requirement may not be discriminatory and the authority should always justify its implementation, for example on the grounds that it maintains the viability of the city or that it avoids vacant premises. Moreover, the restrictions caused by the plan should be necessary and proportionate. Therefore, the competent authorities will have to examine which (existing and future) planning requirements fall within the scope of the Services Directive. If the Directive applies, the authorities will not only have to assess whether the requirements comply with the conditions of the Directive but will also have to notify them to the European Commission.