39Furthermore, in accordance with the first paragraph of Article 50 EC, the provisions of the Treaty concerning freedom to supply services apply only if those relating to the right of establishment do not apply. Therefore Article 49 EC is also not relevant in the present proceedings. The construction of roadside service stations by the legal persons referred to in Article 48 EC necessarily implies that they have access to the territory of the host Member State with a view to a stable and continuous participation in the economic life of that State, in particular by the setting up of agencies, branches or subsidiaries (see, by way of analogy, Gebhard, paragraphs 22 to 26, and Case C-171/02 Commission v Portugal [2004] ECR I-5645, paragraphs 24 and 25).
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